July 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictments Nos. 98-04-1607; 98-07-3317; 99-02-0863; 01-01-0301. Accusation No. 01-03-404.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2009
Before Judges Carchman and Parrillo.
Defendant David Brown appeals from a Law Division order denying his petition for post-conviction relief (PCR). He argues that his guilty plea to carjacking was not supported by an adequate factual basis and that counsel was constitutionally ineffective for allowing the plea to proceed. We disagree and affirm.
Between 1998 and 2001, defendant was charged in four separate indictments and one accusation with a total of eighteen crimes, ranging from third-degree drug possession, N.J.S.A. 2C:35-10a, to first-degree carjacking, N.J.S.A. 2C:15-2. He resolved these matters by entering into two plea agreements.
The first was entered on March 20, 2000. Defendant pled guilty to third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count 3 of Indictment No. 98-04-1607); first-degree robbery, N.J.S.A. 2C:15-1 (count 1 of Indictment No. 98-07-3317); and two counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts 1, 2 and 3 of Indictment No. 99-02-863). In exchange for defendant's guilty plea, the State agreed to recommend an overall sentence of twelve years imprisonment with an 85% parole ineligibility, and to dismiss the remaining counts of those indictments.
The second plea agreement was entered one year later, on March 23, 2001. At that time, defendant pled guilty to two counts of first-degree carjacking, N.J.S.A. 2C:15-2; two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree eluding, N.J.S.A. 2C:29-2b (counts 1, 4, 3, 6 and 7 of Indictment No. 01-01-301). He also pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12- 1b, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (counts 1 and 2 of Accusation No. 01- 03-404). In exchange for defendant's guilty pleas, the State recommended an overall sentence of 25 years imprisonment with an 85% period of parole ineligibility, to run consecutively to the sentence imposed on Indictment Nos. 98-07-3317, 99-02-863 and 98-04-1607. All remaining counts of the indictment and accusation, and all counts of the other two indictments (Indictment Nos. 01-03-406 and 01-03-405), would be dismissed.
The court, however, indicated that it would most likely impose a concurrent sentence of 22 years imprisonment with an 85% parole ineligibility.
At his first plea appearance in 2000, defendant admitted to possessing heroin with the intent to distribute it within 1000 feet of the Montgomery Street School in Newark on February 5, 1998; to robbing Derrick Brady on March 27, 1998, by inflicting serious bodily injury on him while committing a theft; and robbing Tanfiq Ismail on September 1, 1998, by threatening him with a handgun without a permit.
At his second plea appearance in 2001, defendant admitted to committing an aggravated assault upon Rahman Hall on June 7, 2000, by recklessly shooting him with a handgun, which he possessed to use unlawfully against Hall. He also admitted that on September 3, 2000, while in Newark, he and a co-defendant, Jeffrey Melvin, stole a motor vehicle from Keisha Crumbly while threatening her with a gun, which he possessed to use unlawfully against the victim. He further admitted to inflicting bodily injury upon an occupant of that car, Darryl Hayes, while in the course of stealing it, and possessing a handgun while in the commission of that crime with the intent to use it unlawfully against Hayes. And finally, defendant admitted to eluding police officers on September 3, 2000, in the vehicle he had carjacked from Keisha Crumbly.
Specifically, as to the carjacking incident, defendant gave the following factual basis:
[DEFENSE COUNSEL]: And is it true that you and Jeffrey Melvin on September 3rd, 2000 in the City of Newark did attempt or actually steal a motor vehicle from Keisha Crumbly while threatening her with a gun?
[DEFENSE COUNSEL]: Is it also true that on the same date and at the same time you did, along with Jeffrey Melvin, possess a handgun with the purpose to use it unlawfully against Keisha Crumbly?
[DEFENSE COUNSEL]: Is it also true that on the same date and at the same time you and Jeffrey Melvin did in the course of committing an unlawful taking of a motor vehicle or an attempt to commit an unlawful taking of a motor vehicle inflict bodily injury or force upon Darryl Hayes, an occupant of that car?
[DEFENSE COUNSEL]: Is it also true that on the same date and at that same time you did possess a handgun with Jeffrey Melvin with the purpose to use it unlawfully against Darryl Hayes?
On May 21, 2001, defendant was sentenced in accordance with the court's intimation at time of plea, namely to an aggregate twenty-two-year term with an 85% period of parole ineligibility. He filed an appeal which was heard on our Excessive Sentencing Oral Argument calendar (ESOA) because the only issue raised related solely to the sentence imposed. We affirmed by order of October 17, 2006.
Subsequently, on April 23, 2007, defendant filed a PCR petition. At the hearing on December 18, 2007, defendant argued that: (1) there was an inadequate factual basis for his carjacking plea because of the lack of evidence that the victim was in possession or control of the vehicle when it was stolen; and (2) that his counsel was ineffective for advising him to enter the guilty plea without a proper factual basis. As a threshold matter, the PCR judge found defendant's PCR petition was procedurally barred both for: (1) failure to have filed it within the five-year limitation of Rule 3:22-12 without a showing of excusable neglect; and (2) failure to raise the PCR issues in prior proceedings, including defendant's direct appeal, Rule 3:22-4. As to the former, Judge Kennedy reasoned:
In this particular case, the defendant asserts that he was awaiting disposition of the Appellate Division's consideration of his appeal. He also claims he was working in the [prison] kitchen. With regard to the latter claim, that he was working in the kitchen, the court finds that's not a basis for a delaying... beyond the five-year limitation. After all, I understand that many prisoners in state prison are dutifully occupied in various occupations, one of which is the kitchen. Merely being in the kitchen provides no basis for excusing a delay. Clearly, one cannot assert that awaiting an Appellate Division decision is no reason for delay either. If that were the case, then the rule would provide that Post-Conviction Relief applications must be filed within five years of an Appellate Division decision denying the defendant's appeal.
As to the Rule 3:22-4 bar, Judge Kennedy concluded:
However, I must observe that the defendant never raised such an issue on direct appeal and it is therefore unavailable as a basis for PCR unless it falls within one of the exceptions set out in Rule 3:22-4[(a), (b) or (c)]. (A) provides that it could not have previously been asserted or raised; (B) that the enforcement would raise a fundamental injustice; or (C) the denial would be constitutional -- the denial of consideration would be contrary to the constitution.
As to (A) there is no reason that the inadequacy of the factual basis for the plea couldn't reasonably have been raised on direct appeal. With respect to (C) there is no constitutional requirement that a guilty plea have a factual basis unless "there are indicia, such as [a] contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." State v. Mitchell, 126 NJ 565, 577 (1992). I find no basis for such a constitutional claim in this case.
Finally, with respect to (B) the exception is applied only in "exceptional circumstances" as noted in State v. Mitchell, supra, [126 N.J.] at 586.
I perceive no fundamental injustice here. The plea was clearly knowing and voluntary. The defendant was aware of the statements that were made, aware of the position of his co-defendant, understood the nature of the charges, understood his potential exposure and negotiated an extraordinary [sic] favorable plea bargain. Given the circumstances, his claim of injustice rings hollow.
Even though procedurally barred, the PCR judge went on to find no substantive merit to defendant's application.
Specifically, Judge Kennedy found no showing of ineffectiveness of counsel because the factual basis for defendant's plea to carjacking was well-supported by defendant's own admissions together with supplemental facts of record, including the victim's grand jury testimony and statements by witnesses to the police:
I conclude that under the facts of this case, the defendant has not established that his counsel was ineffective in any way, shape, manner or form, nor do I find that the defendant's counsel committed egregious error that would have affected the outcome of this case.
I alluded earlier to some of the statements made by Keisha Crumbly and Darryl Hayes as well as witnesses in connection with this case. In State v. Mitchell, the Court noted that "[i]n determining whether an adequate factual basis exists, the court may consider the defendant's statements as well as information gleaned from [the] surrounding circumstances." 126 N.J. at 581. Also I alluded to State v. Barboza[, 115 N.J. 415, 422 (1989)] and State v. Sainz[, 107 N.J. 283, 293 (1987)]. So I can consider facts gleaned from surrounding circumstances.
It would seem appropriate that facts gleaned from surrounding circumstances would include, among other things, testimony given at the Grand Jury, testimony in statements given by victims and witnesses, and so I have done so here. And when I consider what the defendant said at the time of his plea and those surrounding circumstances, it seems clear beyond any shadow of a doubt that the defendant and his companion committed a carjacking in this case by the use of force and infliction of an injury upon a person in possession and control of the vehicle, or threaten them with, puts them in fear of immediate bodily injury.
The facts in this case, as I indicated earlier, demonstrated that Ms. Crumbly was standing right next to her vehicle with her companion when the defendant and his companion came up to them, brandished weapons and pushed her into the trunk of the car, smacked her in the head with a weapon and then courageously got into her car and drove off. This would establish carjacking under any of the portions of the statute that the Court read out and, therefore, [defense counsel's] apparent recommendation to the defendant that he accept the plea bargain cannot be said in any way, shape, manner or form to have been a violation of his duty as an attorney.
On appeal, defendant raises the same issues advanced before the PCR court and soundly rejected there:
I. THE COURT COMMITTED ERROR IN FAILING TO FIND THAT THE DEFENDANT'S PLEA WAS NOT SUPPORTED BY AN ADEQUATE FACTUAL BASIS AND NOT VOLUNTARILY ENTERED.
II. THE COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO THE DEFENDANT TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
III. THE COURT COMMITTED ERROR IN FINDING THAT THE DEFENDANT'S PETITION WAS PROCEDURALLY BARRED.
We similarly find no merit to these issues, Rule 2:11- 3(e)(2), and therefore affirm substantially for the reasons stated by Judge Kennedy in his thoughtful and comprehensive oral opinion of December 18, 2007.
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