On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3198.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and C.L. Miniman.
Defendant Reginald Scott appeals the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm the June 5, 2007, order denying PCR because defendant's claim that he received ineffective assistance of counsel when he entered his plea lacks merit. However, we conclude that defendant's PCR counsel was ineffective because he failed to raise an ineffective-assistance issue with respect to appellate counsel, who failed to prosecute defendant's direct appeal, and we remand this matter to permit defendant to amend his PCR petition to assert this ineffective-assistance claim.
Defendant was charged on October 10, 1996, with two counts of first-degree murder, N.J.S.A. 2C:11-3a(1), (2) (Counts One and Two); two counts of first-degree felony murder, N.J.S.A. 2C:11-3a (Counts Three and Four); four counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (Counts Five to Eight); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count Nine); and four counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Ten to Thirteen).
Defendant, who was twenty years old at the time, pled guilty on August 1, 1997, to Counts One and Two, as amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; Counts Seven and Eight, first-degree armed robbery, N.J.S.A. 2C:15-1; and Count Nine, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b.*fn1 At the time of his plea, defendant had a prior fourth-degree conviction for pointing a firearm, which carried a maximum mandatory eighteen-month state prison term. As a result, mandatory extended-term sentences on all counts to which defendant pled guilty were required by the Graves Act, N.J.S.A. 2C:43-6c, d.
Defendant was sentenced on August 25, 1997. The judge found no mitigating factors and the aggravating factors were "[t]he circumstances of the offense in that 2 separate victims [were] killed[;] the serious of the harm inflicted in that the victim left behind family (at least one)[; and] the need for deterring [defendant] and others from violating the law," N.J.S.A. 2C:44-1a(1), (2), and (9). Accordingly, the judge sentenced defendant to two concurrent terms of sixty years on Counts One and Two with twenty-five years to be served without parole; two thirty-year terms on Counts Seven and Eight with fifteen years to be served without parole, to run concurrent to the term on Count One; and one ten-year term on Count Nine, to run concurrent to the term on Count One. All remaining counts in the indictment were dismissed at sentencing.
Defendant appealed his conviction and sentence, but the sentencing transcript was not available and we remanded the matter on October 16, 2001, for reconstruction of the sentencing hearing. After the November 16, 2001, remand proceedings, the matter was placed on our February 5, 2002, Excessive Sentencing Oral Argument calendar and we again remanded the matter to the sentencing judge on February 6, 2002, with specific instructions requiring that the reconstructed record "include a statement of reasons by the trial court for the maximum terms imposed." We did not retain jurisdiction. On February 25, 2002, the sentencing judge wrote to counsel and explained that he imposed the maximum term of sixty years because there were no mitigating factors and the aggravating factors "substantially and infinitely" outweighed the nonexistent mitigating factors. Defendant's appellate counsel did not move to restore the appeal thereafter.
Defendant filed a pro se PCR petition on May 14, 2002, which he supplemented on January 10, 2005, with a "Statement of the Facts."*fn2 Defendant asserted he was innocent; his confession was coerced; he was pressured by his plea counsel to accept the deal offered by the State; and his counsel told him that he had no option and advised him the judge promised "to go down on the sentencing." He also averred that several days after the plea he communicated with his attorney and asked if he would "come out of this with a sentence of 121/2 - 25 years or close to it," to which his counsel replied that he could not be sure what the judge would do. As a result, defendant told his counsel that he wanted to withdrawn his plea because that was not the deal, but his attorney told him it was too late. He claimed that, had he known the judge would only take five years off the mandatory minimum, he would have agreed to the offer of "30/30." Defendant also asserted that counsel had failed to prosecute an appeal from the sentences imposed.
Defendant's petition was heard on October 21, 2005, by the judge who took defendant's plea and imposed sentence. The judge did not conduct an evidentiary hearing, although defendant was prepared to present testimony at that time. The judge found defendant's affidavit "totally incredible" in light of the transcript of the plea hearing, that his plea counsel was "probably one of the finest criminal practitioners statewide and is somebody who has extensively represented defendants not only in homicide cases, but is I think virtually now the prime person that the Public Defender's Office uses statewide in capit[a]l cases." The judge concluded that there was no credible basis for a finding of inadequate representation at the time of the plea and denied PCR. An order to that effect was entered on October 31, 2005.
Defendant appealed the denial of PCR and we reversed on the ground that defendant's petition required an evidentiary hearing. State v. Scott, No. A-2381-05, slip op. at 9 (App. Div. Jan. 23, 2007). We found the judge was in no position to determine the credibility of defendant's sworn statements and reject defendant's contention that his attorney "failed to explain the consequences of his guilty plea and then, when defendant expressed his misunderstanding of or dissatisfaction with the plea agreement, dissuaded him from moving to vacate his plea prior to sentencing." Id., slip op. at 9-10 (footnote omitted). We also specifically permitted defendant to seek leave to amend his PCR application "to include a claim of ineffective assistance of counsel with regard to the failure of appellate counsel to further pursue defendant's direct appeal." Id., slip op. at 10-11.
An evidentiary hearing was conducted on April 26, 2007, before a new PCR judge who, as an assistant prosecutor, signed the October 10, 1996, indictment charging defendant with the crimes here at issue. Both defendant and his plea counsel testified on that occasion. Plea counsel could not remember if defendant sought to withdraw his plea, acknowledging he may have done so. Closing arguments were made on May 10, 2007, and the judge issued a written decision on June 5, 2007, denying PCR.
The judge summarized defendant's testimony and his admissions on cross-examination that he was not forced to give the answers he did at the plea hearing, that he did not express any reservations at that time respecting the terms of the plea, and that he did not question the terms of his sentence and plea counsel's competence until four and one-half years after his conviction. The judge also summarized plea counsel's testimony, who denied telling defendant it was likely the judge would impose a sentence of twenty-five years with half that term to be served without parole. The judge also noted plea counsel could not remember if defendant had contacted him after the plea seeking to have it vacated.
The judge found little credibility in the testimony and prior "affidavit" of defendant because defendant "admitted simply to 'hoping' for a sentence of 25 years with 121/2 period of parole ineligibility." He found defendant did not raise any concerns during his plea or sentencing and waited four and one-half years after his plea to submit a PCR petition. He observed, "The plea form and plea colloquy indicate Petitioner's desire to plea[d] guilty and exhibits a clear understanding of the sentence he was facing." He also found plea counsel's testimony credible. The judge concluded:
There is simply no evidence that Petitioner's counsel was deficient in any way. A Defendant's hopes are limited by the charges to which they plead guilty. Hoping for a sentence of 25 years with 121/2 does not give rise to ineffective assistance if it cannot be obtained. [Plea counsel] is not alleged to have promised the Petitioner 25 years with 121/2. Petitioner admits that he hoped to get that sentence. Petitioner's claim that he attempted to contact [plea counsel] to vacate his plea soon after it occurring is not substantiated by any evidence. Even if Petitioner did express his desire to vacate the plea to [plea counsel], he failed to contact the Judge and made no attempt to contact anyone regarding this desire until 41/2 years later. Thus, Petitioner has failed to satisfy the deficiency prong of Strickland.*fn3....
In addition, the impact of Petitioner's claims of error was not prejudicial, either individually or in the aggregate, to the Petitioner's plea. Therefore, even if, arguendo, Petitioner's trial counsel's performance was deficient, he has failed to demonstrate ...