December 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERMAINE MCNEIL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-11-0371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2009
Before Judges Grall and Messano.
Defendant Jermaine McNeil appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points for our consideration:
POINT I IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.
POINT II THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
Having considered these arguments in light of the record and applicable legal standards, we affirm.
Defendant pled guilty to aggravated manslaughter and unlawful possession of a handgun in the July 26, 2003 slaying of his brother, Terrence. A third brother, Ronald, witnessed the shooting, after which defendant "ma[d]e arrangements to leave the state" to avoid apprehension.
Apparently after a jury was selected, but before the trial commenced, defendant entered a guilty plea. Pursuant to the plea bargain, defendant was to receive concurrent sentences with a maximum exposure of fifteen years imprisonment, and an 85% period of parole ineligibility. See N.J.S.A. 2C:43-7.2. The judge imposed sentence in accordance with the plea bargain.
Defendant's direct appeal was limited solely to the alleged excessive nature of his sentence. We affirmed the sentence. State v. Jermaine McNeil, No. A-1574-05 (November 15, 2006). His petition for certification to the Supreme Court was denied. 190 N.J. 254 (2007).
Defendant filed a petition for PCR. Defendant's brief does not set forth the date of the filing, nor does his appendix include a copy of the petition. The appendix does include several pages listed simply as "Statements from Defendant" that are accompanied by "Previous Exhibit" references, and a document entitled "List from Defendant" that is characterized as "Itemizing omissions of defense Counsel." We assume these items were exhibits to the PCR petition and were before the PCR judge, the same judge that had taken defendant's guilty plea and imposed sentence.
We therefore glean from the transcript of the hearing, held on January 18, 2008, that defendant's PCR claim was that defense counsel provided ineffective assistance. We quote at length the arguments raised by PCR counsel at the time:
My client is just arguing that his plea was not knowingly and voluntarily given. He felt that we [sic] was forced to plea [sic] guilty. I believe, during his plea hearing, he admitted that he was not satisfied, or didn't have sufficient time to speak with his attorney. He went off the record, came back on, and said that he was.
He's arguing that his attorney didn't hold any pre-trial hearings, and didn't even want to discuss the potential of having a trial. He thought maybe a Wade*fn1 [h]earing should have [been] filed on his behalf to question the identification his brother made of the alleged perpetrator. There was [sic] a couple of other allegations regarding his brother, that he wanted his attorney to investigate, and his attorney didn't do so. And also, there, was [sic] a couple of witnesses out there or one witness in particular, who he asked his attorney to investigate. His attorney failed to do so. I then tried to investigate, and the person was no longer able to be located.
And he also--he did want--he says, he did want his matter to be taken to trial, but he just felt pressured, and that there was no talk at all about a possible trial. He asked his attorney to obtain some medical records regarding a condition he has where he blacks out and can't recall what he has done. But his attorney failed to do so.
That's the gist of the ineffective assistance of counsel claims.
In large part, this summary of defendant's claims reflects the contents of those statements included as "[e]xhibits" in the appellate appendix. At the hearing, the PCR judge's discussion of defendant's claims coincided with that given by PCR counsel.
The judge first noted that defendant's petition failed to include "any certification that . . . says he's not guilty." The judge observed that defendant failed to set forth any justification for the withdrawal of his guilty plea, noting that defendant felt only "[t]he pressure of reality, of what he [was] about to face in the courtroom." The judge further recounted the benefits defendant obtained through the plea bargain, i.e., limiting his sentence exposure to fifteen years.
Turning to defendant's claims of ineffective assistance, the judge noted that he "d[id not] have a full[-]fledged certification where [defendant] detail[ed]" the claims against defense counsel. He concluded that counsel's performance was not deficient in any manner; furthermore, defendant failed to demonstrate any prejudice because he received "a generous plea bargain" from the State. The judge found "no justification whatsoever for an evidentiary hearing," and entered the order under review.
Before us, defendant advances a claim of ineffective assistance "due to the conflict of interest of defense counsel, who had been retained by Sharon Boone." We provide some background. Boone was listed as a State's witness at trial. At the time of defendant's guilty plea, defense counsel acknowledged that he had spoken to Boone, defendant's fiancée, while representing defendant. She was under indictment for perjury, the allegation being that she "attempt[ed] to set up an alibi for . . . [d]efendant" by lying to the grand jury about his whereabouts at the time of the shooting.
Defense counsel further advised the judge that in reviewing his file, he noticed that Boone had retained him to represent defendant. Indeed, this is borne out by a retainer agreement that is part of the appellate record. Although signed by Boone, it clearly reflects counsel's representation of defendant, not Boone. There is nothing in the record that indicates the retainer agreement was before the PCR judge.
At the time of the plea, defense counsel further advised the judge that Boone, who was represented by other counsel, had pled guilty. Defendant, however, was still intent on proceeding to trial, possibly testifying, and asserting an alibi. Thus, defense counsel advised the judge of his dilemma, i.e., that if that happened, Boone might be called as a State's witness to refute defendant's alibi. Under the circumstances, counsel believed he "had a real problem continuing [his] representation of [defendant]." Noting Boone's representation by another attorney, however, the judge believed the situation presented "a mere appearance [of a conflict of interest] but without any real substance of conflict."
In any event, what followed were extensive discussions between the judge, defense counsel and defendant regarding the plea offer from the State, and defendant's then-apparent intention to proceed to trial. After what the judge described as "a somewhat protracted recess," however, defendant decided to accept the State's offer and pled guilty.
While under oath, defendant admitted that he shot his brother after an angry encounter. Defendant further stated that he understood the plea agreement, understood the various rights he possessed and that he was waiving as a result of the guilty plea, acknowledged reviewing the plea form with his attorney and then executing it, and acknowledged that his plea was made voluntarily and of his own free will. When defendant indicated that he needed more time to speak with counsel, the judge took a recess and permitted him to do so.
Defendant told the judge that he was fully satisfied with his attorney's services, and acknowledged that counsel had "explained . . . all the things [he] believe[d] [he] need[ed] to have explained about [the] case."
Defendant now claims that counsel provided ineffective assistance because he "misled and withheld information" from him. Specifically, he claims his attorney "withheld information about the implications of his conflict of interest: the alibi, force the plea [sic], and keep the retainer money." We reject the argument for a number of reasons.
As noted above, the issue of defense counsel's "conflict" was never raised before the PCR judge. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Therefore, it is improper for defendant to argue the point for the first time before us.
Furthermore, we reject the claim on its merits. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must "show  that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome of the trial. Fritz, supra, 105 N.J. at 58.
We have noted that "[o]nce a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." Ibid. (citing State v. Preciose, 129 N.J. 451, 462 (1992)).
There are a number of reasons why defendant's petition failed to present a prima facie case for which an evidentiary hearing was necessary. In the context of a guilty plea, a defendant can meet the second prong of the Strickland/Fritz test only by demonstrating "'that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial'". State v. DiFrisco, 137 N.J. 434, 528 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985)). The record is devoid of such a claim by defendant.
Additionally, having carefully reviewed the plea transcript, it is apparent that counsel never represented Boone on her perjury charges. At the time of the plea, the judge, who also accepted Boone's guilty plea, clearly indicated she was represented by another attorney. The retainer agreement expressly indicates that defense counsel was being retained to represent defendant. There is nothing in the record, for example a certification from Boone or anyone else, which refutes this essential fact.
Moreover, defendant was in court when his attorney explained the circumstances regarding Boone's execution of the retainer agreement on his behalf. Counsel explained in detail his concerns regarding Boone's possible appearance as a State's witness at trial. Indeed, in one of the exhibits in his appendix, defendant acknowledges Boone's guilty plea and his attorney's explanation that Boone could not take the stand as a defense witness because of a "conflict of interest." It is therefore entirely disingenuous for defendant to now argue that counsel "withheld information" in this regard.
Most importantly, the colloquy between the judge and defendant clearly indicates that he had ample time to discuss the situation with counsel and that he was fully satisfied with his services. Having had the situation expressly explained to him in court, we view defendant's statements under oath to be a knowing and voluntary waiver of any claim that defense counsel's continued representation of him was somehow tainted by an alleged conflict of interest occasioned by Boone signing the retainer agreement.*fn2
To the extent defendant raises other claims of ineffective assistance of counsel, we view them to be of insufficient merit to warrant any further discussion in this opinion, R. 2:11-3(e)(2), and affirm the denial of his petition for PCR relief substantially for the reasons expressed by the judge below.