On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 99-07-2572, 99-08-2658, 99-09-2981, and 99-10-3041.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 27, 2010
Before Judges Cuff and C.L. Miniman.
Defendant Khalif Franklin appeals from the denial of his petition for post-conviction relief (PCR) from four judgments of conviction dated April 14, 2000, on which the sentencing judge imposed an aggregate sentence of fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6. Defendant pled guilty under Indictment No. 99-07-2572 to first-degree robbery, contrary to N.J.S.A. 2C:15-1. Under Indictment No. 99-08-2658, defendant pled guilty to first-degree robbery, contrary to N.J.S.A. 2C:15-1. Under Indictment No. 99-09-2981, defendant pled guilty to first-degree robbery, contrary to N.J.S.A. 2C:15-1; and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. Finally, under Indictment No. 99-10-3041, defendant pled guilty to two counts of first-degree robbery, contrary to N.J.S.A. 2C:15-1; and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. On direct appeal from the four judgments of conviction, we affirmed by order dated June 5, 2002. We now affirm.
Defendant executed his first PCR petition on March 26, 2004. He certified that his assigned public defender never visited him during the nine months pre-plea that he was in Essex County Jail and Caldwell Jail. He only saw his attorney in the courtroom or courtroom holding cell on status conference dates and was never given a chance to speak with his attorney privately. Further, his attorney never gave him copies of the discovery for any of his cases even though defendant filed a formal motion in December 1999 to compel his attorney to provide him with the discovery. Additionally, defendant's attorney never gave him evidence from any investigation he conducted on any of his cases. He certified that if he had been given an opportunity to review discovery and consult with his attorney, he would have taken all of the cases to trial and not accepted the plea bargain even though he was facing much greater prison time. In his brief in support of PCR, defendant asserted that he had been denied the effective assistance of counsel.
The facts relevant to these claims are gleaned from the plea hearing on January 31, 2000, and the sentencing hearing on April 14, 2000. Defendant first testified that he was in Irvington on February 15, 1999, when he stopped his van, got out, and took a gold chain from the neck of one Natalie Barrett, whom he did not know, striking her in the arm with a handgun. Defendant was nineteen years old at the time. He did not have permission to have a handgun and knew it was illegal to possess a gun without a license. He had the handgun in his possession and it was operable. Defendant next testified that on March 21, 1999, he was in Newark when he approached two juveniles, S.M. and R.W., whom he did not know, with a handgun in his possession. It was his intent to rob them and he took a coat from one of the juveniles. On March 25, 1999, in Newark he approached one Howard McClain, whom he did not know, and robbed him of five dollars, brandishing the operable handgun he had in his possession. Finally, on April 4, 1999, in Newark he and other perpetrators approached one Terrell Tribbet, assaulted him, and robbed him of $5300.
On questioning from the court, defendant testified that he understood he had a right to trial by jury; to confront witnesses; and to remain silent, which would not be used against him. He understood that, by pleading guilty, he was waiving these rights. He admitted he initialed the pages on the plea form and signed his name on pages four and five. He admitted he went over the form with his attorney and that the only representation made to him was that the judge was inclined to sentence him to fifteen years rather than the twenty years being recommended by the State. He denied that anyone had forced him to plead guilty or made any threats against him. He was pleading guilty of his own free will and was satisfied with the services of his attorney. The judge then reviewed the pleas and elicited defendant's comprehension of his penal exposure if he tried the cases and his penal exposure, including agreed restitution, if he pled guilty. He acknowledged that his sentence was subject to NERA and the Graves Act and would not be eligible for parole for twelve years and some months. The judge accepted his plea.
On February 14, 2000, defendant filed a pro se motion to withdraw his pleas on all four indictments.*fn1 That motion was argued on defendant's sentencing date. His assigned public defender advised the judge that defendant's grandfather had retained private counsel to represent defendant if his motion was granted. He advised the judge that defendant had sought an extension of time on January 31, 2000, to confer with his family, but the request was denied because that date was a trial date on one of the four indictments. As a result, defendant had to take the plea offer or proceed to trial. A day or two after the plea was entered, defendant's father called counsel and stated if defendant had had an opportunity to speak with his family, he might not have accepted the plea. Counsel urged, in light of defendant's age and the penal exposure, it would not have been unfair to allow defendant to confer with his family. As a result, he urged that defendant should be allowed to withdraw his plea.
Defendant's private attorney then addressed the judge and stated that he had spoken with defendant that morning and defendant definitely wanted to retract his plea and proceed to trial. Counsel sought an opportunity to go over the plea transcript, confer with the family, and have an opportunity to properly present to the judge all of the facts concerning defendant's desire to withdraw his plea and the pressures that he may have been under at the time.
The judge observed that the indictment in September 1999 gave defendant plenty of time to confer with his family. He found that defendant was not pressured into entering the plea and understood his rights. He found that defendant had not presented any fair and just reasons for withdrawing his plea; all the judge had heard was that defendant changed his mind. There was no claim the plea agreement was faulty, that defendant was coerced, or anything of the like. There was no evidence the plea was not knowing and voluntary. Further, the case had been carried several times to allow defendant to confer with his attorney. As a result, the judge denied defendant's motion to withdraw his plea. Nonetheless, he gave counsel an opportunity to place other factors on the record with additional papers, but stated he was going to proceed to sentencing. No such additional papers were filed.
Defendant was given a credit for 334 days time served and was sentenced to fifteen years in prison, as described above.
The judge found aggravating factors three,*fn2 the risk of reoffense; six,*fn3 the extent and seriousness of defendant's prior convictions; and nine,*fn4 the need for deterring defendant and others. The judge found no mitigating factors*fn5 and concluded that the aggravating factors outweighed the nonexistent mitigating factors. He imposed two fifteen-year concurrent terms subject to NERA on the first-degree robbery convictions under Indictment Nos. 99-07-2572 and 99-08-2658 with three years of parole supervision upon release. He imposed three four-year terms on the three remaining first-degree robbery convictions under Indictment Nos. 99-09-2981 and 99-10-3041 to run concurrently with each other and the two fifteen-year terms. Finally, he imposed two four-year terms subject to the Graves Act on the second- and third-degree weapons offenses under the latter two indictments, also to run concurrently with each other and the other four- and fifteen-year terms.
New private appellate counsel argued on appeal that defendant had never had the opportunity of probation, parole, or any other programs that may have rehabilitated him, and these were his first adult convictions. He argued that defendant should have been sentenced as a second-degree offender because he came from good grandparents. He urged that the judge erred in failing to find mitigating factors, because defendant had a drug problem, he was a youthful offender, ...