August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL A. THOMSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-06-1321.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2009
Before Judges Payne and Waugh.
Defendant Daniel Thomson, with his brother, repeatedly stabbed a gas station attendant, causing his death. Following denial of the brothers' motions to suppress the statements given to the police, defendant entered a conditional plea of guilty to first-degree murder, N.J.S.A. 2C:11-3a(1) or (2), receiving a sentence of thirty years in custody, with a thirty-year parole disqualifier. We affirmed defendant's conviction, State v. Thomson, No. A-1404-03T4 (App. Div. December 27, 2004) and certification was denied, State v. Thomson, 183 N.J. 216 (2005). Defendant then filed a petition for post-conviction relief (PCR), which was denied without a hearing. Defendant has again appealed.
On appeal, defendant raises the following arguments:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND PCR COUNSEL IN VIOLATION OF U.S. CONST AMENDS. VI, XIV; N.J. CONST. ART I, ¶ 10. (Partially raised below.)
DEFENDANT'S GUILTY PLEA WAS NOT SUPPORTED BY AN ADEQUATE FACTUAL BASIS NOR WAS IT KNOWING[LY] AND VOLUNTARILY ENTERED. THEREFORE HE IS ENTITLED TO WITHDRAW THE PLEA AS A MATTER OF DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. 8, ¶ 1. (Partially raised below.)
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING.
Following our review of defendant's arguments in light of the record and applicable precedent, we affirm.
Our review of this matter is principally governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). To prevail under Strickland's standards, defendant was required to show (1) "that counsel's performance was deficient," and that counsel made "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) that counsel's "deficient performance prejudiced the defense," resulting in errors "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; Fritz, supra, 105 N.J. at 52.
To meet this standard, defendant claims that trial counsel was ineffective because he did not adequately prepare both himself and defendant for the four-day Miranda*fn1 hearing conducted in the matter to determine the voluntariness of defendant's confession and for possible trial, and that he did not properly represent defendant at the plea hearing. With respect to appellate and PCR counsel, defendant argues that they failed to raise a meritorious issue, the inadequacy of the factual basis given for the plea, and that if the issue had been raised, defendant's conviction would have been reversed.
We address first defendant's claims regarding trial counsel. In this regard, defendant contends that he made numerous requests of counsel for the discovery in the matter, and most particularly, his statement to the police. Defendant acknowledges that counsel went over that statement with him. However, defendant claims that he was not given a copy for his own use. According to defendant: among the reasons for his entering a guilty plea was his trial counsel's continued refusal to provide discovery coupled with counsel's lack of preparation for his testimony at the Miranda hearing. Defendant simply lost confidence in his attorney's ability and/or desire to competently represent his interests. Defendant also believed that he was not being provided with the information he needed to make an intelligent and informed decision regarding his case. Out of this sense of frustration, he reluctantly pleaded guilty.
We find this recitation to be inadequate to provide prima facie evidence of ineffective assistance of counsel. Defendant acknowledges that counsel went over defendant's statement with him in preparation for the Miranda hearing. He does not specify what advantage would have been gained if he had also been given copies of that statement. Defendant claims a lack of preparation for the Miranda hearing, but does not specify in what fashion that lack of preparation manifested itself. He states that he was not provided with the information he needed to make an intelligent and informed decision whether to plead guilty. But, again, defendant does not specify what information was lacking or what effect the missing information would have had upon his choice. We thus determine as a matter of fact that plaintiff's allegations in this regard are inadequate. As a matter of law, defendant has not met Strickland's second prong, having failed to establish how any of counsel's alleged failings would have affected the result reached in this case.
Defendant does allege specifically that counsel "failed to conduct a full and complete pre-trial investigation which would have revealed the deficient conduct of the EMTs who reported to the scene of the incident." We find no factual basis for this argument. The post-mortem examination of the victim disclosed that the jugular vein and arch of the aorta had been severed in the attack by defendant and his brother. Defendant does not offer any medical evidence that would tend to suggest that the victim could have survived these injuries, regardless of the level of care provided. Further, he offers no precedent to suggest that negligence on the part of the EMTs, if any, would have constituted a defense to purposeful or knowing murder caused by serious bodily injury resulting in death. N.J.S.A. 2C:11-3a(1) or (2). Defendant's challenge to trial counsel's effectiveness thus fails.
Defendant also challenges the competence of appellate and PCR counsel, noting that neither contested the adequacy of the factual basis for defendant's plea. In this regard, defendant argues that nothing in the plea transcript indicates that the victim died. However, defendant was charged with, and admitted to committing "[f]irst degree murder," a crime that can occur only if the defendant "causes the death of another human being." N.J.S.A. 2C:11-2a (defining criminal homicide); N.J.S.A. 2C;11-3a(1) or (2) (defining the circumstances under which criminal homicide constitutes murder). In these circumstances, we find the victim's death to be implicit in the charges against defendant and his admission that he was guilty of those charges. Failing to raise a meritless claim on appeal does not constitute ineffective assistance of counsel. State v. Worlock, 117 N.J. 596, 625 (1990).
Further, defendant claims that he was entitled to post-conviction relief because the factual foundation for his plea was established by leading questions, to which he responded "yes" or "no." It would have been preferable if the factual basis for the plea had been given by defendant in his own words, but that procedure is not constitutionally required, particularly in a case such as this where the evidence against defendant, including his own confession, was overwhelming. There simply was no chance that defendant was pleading guilty to a crime he did not commit. Indeed, defendant does not make that claim. We therefore find an adequate factual basis for the plea to have existed in this case. State v. Smullen, 118 N.J. 408, 415 (1990).
Because defendant did not offer prima facie evidence of counsels' ineffectiveness or raise factual issues requiring resolution in that regard, we find that a Preciose*fn2 hearing was not required.