October 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DOUGLAS ANDREINI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 03-07-2648; 03-03-1042; 03-05-0748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Graves and J. N. Harris.
This is defendant's first application for post-conviction relief (PCR). He claims that he was the victim of ineffective assistance of counsel and suffered an illegal sentence. We have reviewed his multiple claims of error and find none of them constitute sufficient grounds to compromise the proceedings below, which yielded an aggregate sentence of five years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Accordingly, we affirm.
In April 2004, after consulting with his attorney and engaging in an extended discussion with the court concerning his plea bargain, defendant entered knowing, voluntary, and intelligent guilty pleas to the following crimes: second degree armed burglary (N.J.S.A. 2C:18-2(a)(1) and (b)(2)) in Burlington County, third degree theft (N.J.S.A. 2C:20-3(a)) in Burlington County, third degree burglary (N.J.S.A. 2C:18-2(a)(1)) in Camden County, and third degree theft (N.J.S.A. 2C:20-3(a)) in Camden County. By agreeing to plead guilty to these crimes, defendant was promised that the Burlington County Prosecutor*fn1 would recommend a sentence of no more than five years - subject to the NERA - in the aggregate. At sentencing on August 27, 2004, Judge John A. Almeida exercised his discretion consistent with the terms of the plea agreement, thereby imposing upon defendant an aggregate term of imprisonment of five years, subject to the NERA.
Defendant did not seek direct review of his judgments of conviction. Instead, defendant filed a motion to correct an illegal sentence, which was denied by Judge Almeida on November 14, 2005. Defendant did not appeal the outcome of that motion. The instant application for post-conviction relief was filed in February 2006. A hearing was conducted on the PCR on June 11, 2007, after which Judge Almeida entered an order on June 21, 2007, which granted relief to "correct the statutory citation noted on the judgment of conviction." All other aspects of defendant's PCR were denied, including defendant's request for an evidentiary hearing. This appeal followed.
Defendant was accused of participating in three criminal events, two in Camden County and one in Burlington County. He was indicted by three grand juries and charged with a multitude of crimes. Ultimately, he decided to plead guilty to some, but not all, of them. The plea bargain negotiated by defendant's attorney provided for a sentence five times shorter than the maximum twenty-five years permitted by the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et. seq., for the crimes charged. After consulting with defense counsel, defendant offered a factual basis to support his pleas. One of the components of the plea bargain recognized the strict effect of the NERA due to defendant's plea to second degree armed burglary. N.J.S.A. 2C:43-7.2(a):
A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole. [N.J.S.A. 2C:43-7.2(a).]
Subsection (d) provides:
The court shall impose sentence pursuant to subsection a. of this section upon conviction of the following crimes or an attempt or conspiracy to commit any of these crimes:...
(12) N.J.S.2C:18-2, burglary; [N.J.S.A. 2C:43-7.2(d)(12).]
Defendant argues that there were at least two legal flaws that accompanied his entry of the plea to second degree burglary. First, the Plea Form used by the court was outdated and obsolete because its Supplemental Plea Form for No Early Release Act Cases did not include a reference to armed (second degree) burglary, which became eligible for NERA after June 29, 2001. Defendant asserts that because he reviewed and signed the Plea Form with the wrong information, he was deprived of essential disclosures that undermine confidence that he entered the plea knowingly and voluntarily. Second, he claims that the factual basis that he gave was insufficient to support second degree burglary. He essentially argues that he knowingly plead guilty to third degree burglary (ineligible for NERA treatment) and unwittingly plead guilty to second degree burglary (making him NERA-eligible).
Beyond these two arguments, defendant claims that the sentencing judge failed adequately to analyze defendant's post-plea cooperation with law enforcement authorities, warranting greater weight to mitigating factor 12:
In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances:...
(12) The willingness of the defendant to cooperate with law enforcement authorities; [N.J.S.A. 2C:44-1(b).]
Defendant also asserts that his defense attorney failed to adequately argue the impact of mitigating factors 1, 2, 4, 6, 8, 10, and 11. See N.J.S.A. 2C:44-1(b)(1), (2), (4), (6), (8), (10), and (11). He also complains that his defense attorney neglected to seek a so-called "NERA downgrade," due to defendant's cooperation with law enforcement. Finally, he claims that the cumulative effect of his defense attorney's omissions and commissions effectively transformed the defense attorney "to that of an adversary and not an advocate."
Defendant's factual basis satisfied the elements of second degree burglary. After a full explanation of the NERA effects of a plea to second degree burglary, even with the unwitting and erroneous reference to the outmoded Supplemental Plea Form, defendant testified under oath as follows:
Q: Mr. Andreini, on January 17th in the year 2003, were you in Cinnaminson Township?
A: Yes, I was.
Q: And did you unlawfully enter the house owned by people by the name of Pocius on Branch Pike in Cinnaminson Township?
A: Yes, I did.
Q: And did you do so with the purpose of stealing things when you got inside?
A: Yes, I did.
Q: And on that same date, after you had unlawfully entered that property, did you exercise control, unlawful control over a Browning.9 millimeter handgun, a.30 caliber carbine and a.22 caliber handgun?
A: Yes, I did. [Emphasis added.]
This factual basis clearly supports the element of being armed during a burglary when a deadly weapon becomes "readily accessible to the perpetrator as if he had brought it to the scene initially." State v. Merritt, 247 N.J. Super. 425, 430 (App. Div.) ("armed" means possession and immediate access to weapon), certif. denied, 126 N.J. 336 (1991). In Merritt, the defendant was convicted of second degree armed burglary after entering a residence and stealing, among other things, seven firearms. The defendant argued the firearms were "proceeds of the theft and that he was not 'armed' because he did not use or intend to use firearms in connection with the offense." State v. Merritt, supra, 247 N.J. Super. at 429. The court disagreed and upheld defendant's burglary conviction, stating that an individual "may be found to have been armed, without showing that he actually used or intended to use the weapon, so long as he had immediate access to the weapon during the offense." Id. at 430.
A fair reading of defendant's factual basis here contains admission of every essential element of armed burglary. In obtaining a factual basis for the plea, the judge need not "follow a prescribed or artificial ritual." In re T.M., 166 N.J. 319, 327 (2001). The factual basis "should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy" to determine its adequacy. Ibid.; see also State v. Sainz, 107 N.J. 283, 293 (1987). "Every alleged deficiency in the taking of a factual basis does not constitute reversible error." State v. Pena, 301 N.J. Super. 158, 163 (App. Div.), certif. denied, 151 N.J. 465 (1997). Here, we perceive nothing that suggests reversible error.
As for defendant's claim that he did not knowingly agree to the plea bargain because of the use of a moribund Supplemental Plea Form, his argument ignores the full-bodied discussion, on the record, immediately before giving the factual underpinnings for the crimes. Defendant was fully advised by his defense attorney - and further discussed with the court, in detail - about the essential nature of the plea, the second degree and NERA aspects of the crime of armed burglary, and the penal consequences of accepting the plea instead of holding out for a jury's verdict. Although there can be little excuse for failing to use the proper Supplemental Plea Form more than twenty months after it was issued,*fn2 there was no prejudice to defendant because he was adequately advised and informed before he agreed to the plea bargain. Defendant's argument amounts to precisely the sort of exaltation of form over substance that our courts have properly rejected. See State v. Fisher, 180 N.J. 462, 472 (2004)(noting that the omission of a police officer's signature on a traffic ticket at the time of its issuance was an amendable defect that did not render the ticket invalid).
We have carefully examined the complete record on appeal of defendant's sentencing, particularly the judge's analysis of aggravating and mitigating factors under the lens of defendant's argument of the deficiency of his defense attorney's advocacy. We find there is insufficient merit in defendant's remaining arguments to warrant extended discussion in a written opinion.
R. 2:11-3(e)(2). Suffice it to say that in light of the totality of the circumstances, defense counsel's performance did not deprive defendant of due process of law.
To succeed on an ineffective assistance of counsel claim, defendant must meet the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). The Strickland two-prong approach has been faithfully adopted by the New Jersey Supreme Court and is fully operational in this state. State v. Fritz, 105 N.J. 42 (1987).
The first prong of the Strickland standard requires defendant to demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The test is whether counsel's conduct fell below an objective standard of reasonableness. Id. at 687- 88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. A defendant challenging counsel's performance must overcome a strong presumption that counsel exercised "reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95. Furthermore, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. This deference requires that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Ibid.
The second prong of the Strickland test requires defendant to show that the deficient performance was prejudicial to the extent that defendant was deprived of a fair proceeding. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. This requires a showing that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. At 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Unless a defendant makes both showings under Strickland, ineffective assistance of counsel cannot be found. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. We find that a prima facie ineffective assistance of counsel claim has not been established here. Defendant has not satisfied the second prong of Strickland, that "counsel's errors were so serious as to deprive the defendant of a fair trial." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.