March 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KARAM FADDOUL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-12-3028.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Graves and Newman.
Defendant Karam Faddoul appeals from an order dated April 11, 2008, denying his petition for post-conviction relief (PCR).
After reviewing defendant's arguments in light of the record and the applicable law, we affirm.
Bergen County Indictment No. 02-12-3028 charged defendant with the purposeful or knowing murder of his wife, Bahaa Faddoul, in violation of N.J.S.A. 2C:11-3 (count one); third- degree possession of a weapon (a knife) with the purpose to use it unlawfully, in violation of N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon (the same knife), in violation of N.J.S.A. 2C:39-5(d) (count three). On April 12, 2004, defendant pled guilty to an amended charge of first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a)(1). In exchange for defendant's plea, the State agreed to dismiss counts two and three of the indictment and to recommend a sentence of thirty years in state prison with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also agreed to waive his right to appeal and his right to argue for a lesser sentence.
During the plea hearing on April 12, 2004, defendant's attorney advised the court as follows: "I've discussed this at great length with Mr. Faddoul. I've reviewed discovery with Mr. Faddoul. I've discussed this with him on a number of occasions and I've recommended the plea and he's indicated to me he will accept the plea." Defendant was then sworn, and in response to questions from his attorney defendant confirmed he was accepting the plea agreement. Defendant also provided the following factual basis for his plea:
Q: On June 16th, 2002 where were you living?
A: In 144 Dewey Street.
Q: Garfield, New Jersey?
Q: And on June 16th, 2002 did your wife [Bahaa] Faddoul visit you?
Q: And that was at your apartment, correct?
Q: And at that point was there a restraining order in effect between you and your wife?
Q: And at that time did an argument ensue between you and [Bahaa] Faddoul?
Q: And at that point did you take a knife?
Q: Did you stab her?
Q: Did you stab her multiple times?
Q: Twice, and one of those stab wounds went right into her chest?
Q: And you left the knife in her chest, correct?
A: Yes, I did.
Q: You did, and you left her in your apartment for around four hours before you called the police, is that correct?
A: I don't remember.
Q: It was a considerable amount of time, correct?
Q: And you called the police at that time and told them something terrible had happened, correct?
There was no mention of the five-year period of parole supervision required by NERA during the plea colloquy. However, the supplemental NERA plea form signed by defendant's attorney and initialed by defendant prior to the entry of the plea contained a question that asked whether defendant understood he would be subject to "a 5 year term of parole supervision" after he was released from prison, and "yes" was circled next to that question. Moreover, under questioning by the court, defendant testified he understood the plea agreement and was entering his plea freely and voluntarily. Defendant also testified as follows:
Q: Mr. Faddoul, how old are you?
Q: How much education do you have?
A: BS degree in civil engineering.
Q: Are you a U.S. citizen?
Q: Did you take any drugs or medication before coming in here today?
Q: You have no problem reading and writing in English, is that correct?
Q: You signed the plea form today. Did you read this form?
A: Yeah, I did.
Q: Did you understand it; did your attorney explain it to you?
Q: Reviewed all of the questions with you?
Q: Did you have enough time to review this matter with your attorney?
Q: All of the questions?
The court found that defendant understood the consequences of his plea; there was an adequate factual basis for the plea; and defendant entered the plea freely and voluntarily. Therefore, the court accepted the plea and scheduled the matter for sentencing.
On May 20, 2004, the court sentenced defendant in accordance with the plea agreement to a thirty-year term of imprisonment, with twenty-five years and six months of parole ineligibility under NERA. The original judgment of conviction did not state that defendant was subject to the five-year term of parole supervision mandated by NERA, but an amended judgment filed on August 9, 2004, imposed the five-year period of post- release parole supervision required by NERA.
Defendant did not file a direct appeal from his judgment of conviction. However, he filed a petition for PCR in March 2006. In a certification in support of his petition, defendant claimed, among other things, that his "trial attorney did not advise [him] that there would be a mandatory five (5) year period of parole supervision upon [his] release from prison" and he "was rushed" by his attorney while they were reviewing the plea forms. Defendant stated he would not have pled guilty if he had "known at the time of my plea that there would be a five (5) year parole supervision requirement." Additionally, defendant certified he "was heavily medicated" and "suffering from anxiety and depression" at the time of the plea agreement. Following oral argument, the PCR judge stated his reasons for denying defendant's petition in a sixteen-page written decision on April 11, 2008. An order memorializing the decision was entered the same day.
On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. DEFENDANT IS CONSTITUTIONALLY GUARANTEED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
B. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY VIRTUE OF HIS FAILURE TO INFORM DEFENDANT OF THE MANDATORY FIVE-YEAR PERIOD OF PAROLE SUPERVISION FOLLOWING COMPLETION OF THE THIRTY-YEAR SENTENCE.
C. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY VIRTUE OF HIS FAILURE TO ENSURE THAT THE PLEA WAS KNOWING AND VOLUNTARY IN LIGHT OF DEFENDANT'S USE OF PRESCRIPTION MEDICATIONS AT THE TIME OF HIS PLEA AND SENTENCING.
D. THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT TO AFFORD HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT IS ENTITLED TO WITHDRAW HIS GUILTY PLEA.
We conclude from our review of the record that defendant's arguments do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must establish a reasonable likelihood of success under the Strickland-Fritz test.*fn1 State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-prong test, a defendant must establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. In the context of a guilty plea, the second part of the Strickland-Fritz test----the prejudice prong----focuses on whether defense counsel's performance "affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show 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." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1994); accord State v. DiFrisco, 137 N.J. 434, 457 (1994).
In the present matter, Judge Carroll made detailed findings, which are supported by sufficient credible evidence in the record, and he correctly applied well-settled legal principles. We therefore affirm the denial of defendant's PCR petition substantially for the reasons set forth by Judge Carroll in his comprehensive written decision. We only note that the Supreme Court's recent opinion in State v. Slater, 198 N.J. 145 (2009), provides additional support for the denial of defendant's request to withdraw his guilty plea.