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State v. Hess


April 8, 2010


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 00-03-0203.

Per curiam.


Submitted: January 4, 2010

Before Judges Axelrad and Espinosa.

Defendant Marie Hess appeals from the Law Division's August 28, 2008 order denying her motion for post-conviction relief (PCR) without an evidentiary hearing, primarily alleging ineffective assistance of counsel at sentencing. We affirm.

On March 23, 2000, defendant was charged with first-degree murder, N.J.S.A. 2C:ll-3a(l) and (2), of her husband, a Burlington Township police officer, under Indictment Number 00-03-0203. The State negotiated a plea agreement with defendant whereby it agreed to reduce the charge against her to aggravated manslaughter, N.J.S.A. 2C:11-4a, and recommend a thirty-year custodial term subject to an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, in exchange for her guilty plea, acknowledgement of the applicability of NERA to the crime*fn1 , and agreement not to affirmatively seek a lesser term of imprisonment from the court or appeal her judgment of conviction, and to cooperate with the victim's family in providing a truthful recitation of the manner in which she carried out the homicide.

All of these aspects of the agreement were memorialized in writing, attached to the plea form and placed on the record by the prosecutor and acknowledged by defense counsel at the plea hearing on April l6, 200l. The Prosecutor's April 5, 200l letter stated, in part:

It is our intention, through this plea agreement, to provide a benefit to your client for her cooperation in allowing a plea to Aggravated Manslaughter for a crime which she has clearly indicated, was a purposeful murder. This Office is reducing by 4 1/2 years the mandatory minimum for murder, i.e. thirty years without parole, as the benefit she derives for her cooperation.

Your client is, in turn, conceding the applicability of NERA to the maximum term of imprisonment for the crime of Aggravated Manslaughter. Further, she is conceding that the aggravating factors under N.J.S.A. 2C:44-la so preponderate over the mitigating factors set forth in N.J.S.A. 2C:44-lb as to make the maximum term of 30 years appropriate. I would also indicate that this Office is aware that we cannot bind the Court to sentence in this fashion pursuant to the principles enunciated in State v.

Warren, 115 N.J. 433 (l989), and it is not our intention to do so. However, we believe it permissible to bind your client to this agreement.

Defendant was explicitly questioned as to her agreement to the sentence and the applicability of NERA and that it was exclusively within the province of the court to decide if a lower sentence would be imposed. Specifically, the judge told defendant it was within his "judicial discretion" to sentence her to less than "30 years at 85 percent" but he did not want to give her "any false hopes" or "any hopes at all," or for her to "have an expectation" that he would do that, which defendant expressly acknowledged she understood. She further acknowledged her knowing, voluntary entry of the plea and waiver of rights. Defendant then provided the following factual basis for her plea, which Judge Schlosser accepted as sufficient for aggravated manslaughter:

Q: [Marc Neff, defense counsel]: . . . Do you remember where you were when this event took place?

A: [Defendant] Yes.

Q: Where were you?

A: In the bedroom.

Q: Okay. And whose bedroom was it?

A: Jimmy's and mine. . . . .

Q: And you had been married for how long?

A: Seven.

Q: And during the time immediately preceding this incident, the months that preceded it, were there some financial difficulties in your household?

A: Yes.

Q: Was Jimmy aware of the extent of those financial difficulties?

A: No.

Q: Okay. Did those financial difficulties lead to a great deal of frustration on your part and friction within the marriage from your perspective?

A: Yes.

Q: Were you hiding from Jimmy, your husband, the nature and extent of the financial despair that you, as a couple, were in?

A: Yes.

Q: At this point in time, you and Jimmy were applying for a mortgage, is that correct?

A: Yes.

Q: And it was at this point in time that the tensions between you and Jimmy rose to a heightened level, is that correct?

A: Yes.

Q: Okay. And when those tensions rose to that level, it did culminate in your shooting your husband, Jimmy?

A: Yes.

Q: Where did you get the gun that you used on that particular day?

A: Out of a box that he stored it in in the house.

Q: Okay. And is there any question in your mind that the shot that you fired on that fateful morning was the shot that killed your husband?

A: No. . . . .

Q: [Prosecutor]: Ms. Hess, with regard to the time that Mr. Neff was talking about, when you were in the home, prior to going into the bedroom, you had not gone into the bed with your husband that night, is that correct?

A: Correct.

Q: You indicated, in fact, that you stayed out in the living room on the couch, is that right?

A: Correct.

Q: You also indicated to us that you had decided that you were going to do this, and that is to say, that you were going to shoot him, is that correct?

A: Yes.

Q: You indicated, as a matter of fact, that you made a decision between at least two guns. One was located, in fact, under the couch where you were on, is that right?

A: Yes.

Q: You chose not to use that gun because there was an indication by your deceased husband that that gun had jammed in the past and you were concerned about that, is that correct?

A: Yes.

Q: And you chose this particular gun, which was located behind the chair, is that right?

A: Um-hm -- yes.

Q: You then went into the bedroom and you got what's known as the speed loader, is that correct?

A: Correct. . . . .

Q: You chose the speed loader that was located in the bedroom, you went into the bedroom, also got your uniform for work that day, is that correct?

A: Yes.

Q: You then went out and had some difficulty loading the weapon, is that correct?

A: Yes.

Q: But you continued to do so?

A: Yes.

Q: As a matter of fact, that weapon was in a T-shirt that you had wrapped around it so that your fingerprints would not be on it, is that correct?

A: Yes.

Q: And after doing that, you went into the bedroom, as you've told also, you pulled the trigger back on that weapon, is that right?

A: Yes.

Q: And that was because you knew the difficulty, from your prior association with weapons, as to shooting when you didn't cock the trigger, is that correct?

A: Yes.

Q: And then you aimed at your husband's head while he was sleeping?

A: Yes.

Q: You also corrected for your double vision problem that you have?

A: Yes.

Q: And you intentionally shot and killed him, did you not?

A: (Crying) Yes, I did.

At sentencing on June 22, 200l, the victim's co-worker, Detective Michael Simmons, gave a victim impact statement, without objection. A video entitled "A Tribute to Officer James Hess" was also played as a victim impact statement.*fn2 Defense counsel noted he had received and reviewed a copy of the video beforehand and had no objection to it being shown. The judge, who also had previously reviewed the video, ruled that he "certainly will allow it [as] in keeping with the spirit of the rule with respect to victim impact information."

When defense counsel addressed the court, he described his hands as "somewhat tied" due to the plea agreement but implored the court to make an independent assessment of the aggravating and mitigating factors as required under the law and consider whether the negotiated sentence was appropriate. He stated in part:

As Your Honor knows from the plea agreement and the letter that accompanies it, my hands are somewhat tied. Ms. Hess knowingly, intelligently and voluntarily entered into a plea agreement and it was as [the Prosecutor] put it: after many, many hours and days of negotiation. That plea agreement does not however bind this Court. It cannot. We cannot and will not ever be able to bind the Court in terms of a plea agreement; State v. Warren is clear on that. The Court must make an independent evaluation of the defendant, each and every defendant, the aggravating and mitigating factors and consider what sentence is appropriate regardless of what Ms. Hess or I or [the Prosecutor] think might be appropriate to recommend to this Court.

I cannot, pursuant to the plea agreement, ask the Court to sentence Ms. Hess to less than [what] was agreed to. I can ask the Court to make an independent evaluation of the aggravating and mitigating factors recognizing the lack of any prior criminality, recognizing all of the appropriate factors, and to consider whether or not this Court believes in this particular instance that a 30 year sentence for a 34-year old woman is appropriate under the circumstances.

I'm bound by my agreement. There's not more I can do but leave it to the Court, Your Honor's discretion and hope that the Court will find the appropriate sentence given these circumstances.

The court then found applicable aggravating factors N.J.S.A: 2C:44-1a(2), gravity and seriousness of the harm inflicted, because the victim was asleep and "just didn't know what was coming," and N.J.S.A: 2C:44-1a(9), because of the need to deter this defendant and others from violating the law. The court found mitigating factors N.J.S.A: 2C:44-1b(7), absence of a prior criminal record, and N.J.S.A: 2C:44-1b(12), willingness to cooperate. The court referenced the plea agreement, stating, "[w]ith respect to the agreement of counsel, they have agreed that the aggravating factors are such that they outweigh the mitigating factors." After making an independent assessment, the court concluded the factors were "at least in balance" and "the aggravating factors really do outweigh the mitigating factors," and thus found the plea agreement to be "fair, just, and in the interest of justice."

The court sentenced defendant to thirty years imprisonment with an eighty-five percent period of parole ineligibility and a five-year term of parole supervision under NERA, and imposed mandatory fees and penalties. In accordance with Rule 3:9-3(d), Judge Schlosser then informed defendant of her right to appeal and of the potential risks of the same, explaining:

THE COURT: Okay. Ms. Hess, you have agreed not to appeal, nevertheless you have the right to appeal. And if you wish to appeal, you must appeal within 45 days of today, that's your appeal time. If you want a lawyer for that purpose but cannot afford a lawyer, you make an application; if you are eligible, a lawyer will be appointed for you for the purpose of appeal; do you understand that right?


THE COURT: Now, the down side of that of course, is if you appeal, the State then has the right to say, we had an agreement, and we want to withdraw our plea offer to you.

So that is potentially the risk because then they might wish to reinstate the original charge, but I'm going to tell you, you absolutely have a right to appeal because you do.

Defendant did not file a direct appeal. Instead, on September l, 2005, she filed a PCR petition pro se, supplemented by an amended petition filed by counsel, alleging ineffective assistance of counsel at the sentencing hearing on the following grounds: (1) counsel failed to object to Detective Simmons' statement or the showing of the videotape; (2) counsel failed to argue applicable and supportable mitigating factors the court could have considered in sentencing her; and (3) counsel did not adequately represent her in allowing her to enter into the plea bargain, which included a manifestly excessive sentence. Defendant did not contest the conviction for manslaughter but, rather, requested the sentence be vacated as violative of her constitutional rights and a new sentencing hearing be ordered.

The State responded that the judge made a discretionary decision that the video was a permissible victim impact statement and, regardless, there was no suggestion the video prejudiced defendant's sentence as she received the sentence to which she agreed. The State further urged that defendant's excessive sentence claim, i.e., whether the court properly weighed the aggravating and mitigating factors, was procedurally barred under Rule 3:22-4 because it could have been raised on appeal. The State also distinguished as procedurally and factually inapposite State v. Briggs, 349 N.J. Super. 496, 498 (App. Div. 2002), where we reversed and remanded for resentencing, finding the defendant was denied effective assistance of counsel during the sentencing phase due to a plea agreement restriction that precluded defense counsel from arguing for "a sentence of less than twenty years," the then-presumptive term for the lesser-included offense of aggravated manslaughter. Among other arguments, the State emphasized that Briggs involved a direct appeal, not a PCR, and that we expressly commented that it was "unclear how or why" the restriction in the plea form was included. Id. at 499.

Following oral argument on December 14, 2007*fn3 , Judge LeBon denied defendant's PCR application and found an evidentiary hearing was not warranted. She noted there was no objection to Detective Simmons being characterized as a victim in the case and being permitted to give a statement and no objection to presentation of the video, which she also reviewed. Referencing the wide latitude accorded the court under the Crime Victim's Bill of Rights, N.J.S.A: 52:4B-34 to -70, the court found that even if it was a "far stretch" to acknowledge Detective Simmons as a family member and victim, permitting his statement clearly did not "make it so improper as to taint the sentencing procedure or to be so unduly prejudicial." Moreover, she commented that his reference to the victim as a police officer was not improper and, in fact, it would have been more of a surprise if the witness did not speak of his co-worker in this capacity, referencing Payne v. Tennessee, 501 U.S. 808, 826-27, 111 S.Ct. 2597, 2609, ll5 L.Ed. 2d 720, 736 (1991), because part of a victim often is what that person does for a living. The court concluded that defendant did not establish "a prima facie case of reasonable probability that the outcome would have been different" had the evidence been excluded, further noting there was "no reference by the [sentencing] court to the victim impact and how that changed anything."

The court also concluded that the balance of defendant's claims, relating to an excessive sentence, were procedurally barred as they could have been raised on direct appeal and were not within the enumerated exceptions of Rule 3:22-4. Judge LeBon explained:

None of the issues that are raised by [defendant] today fall into the category of issues outside the record. . . . She could have objected or on appeal raised the issue of Detective Simmons and the video. She could have raised the issue of whether the aggravating factors actually outweighed the mitigating and there is nothing outside the record that would be needed to make those arguments.

Clearly arguing that the sentence was excessive could have been raised on appeal.

There is no fundamental injustice here. Let's not forget that this is the -- the agreement that [defendant] entered into and that the State imposed.

All of these could have been asserted in an appeal and [defendant] had available to her opportunities to raise these issues and to consent. As a matter of law, this is a procedural bar.

With regard to the issue of whether she's entitled to resentence or not, I disagree with the position taken by [defense counsel] and it is clear to me that the only relief that [defendant] would be allowed to get today would be a vacation of her plea and not simply a resentencing. That is not what she asks for, and on the facts presented and on the law as I read it, she is not entitled to that relief and the Court will not grant that relief.

There is nothing demonstrated to the Court in the submissions by this defendant that the conduct of trial counsel was so deficient that but for his -- these deficiencies the result would have been different.

Pertinent to this appeal, subsequent to filing the amended PCR petition, defendant also moved to compel discovery, seeking disclosure to the court for an in camera review of the victim's personnel file with the Burlington Township Police Department and any Internal Affairs files relating to him. Defendant sought a review by the court for the ultimate disclosure of any files or complaints regarding abusive behavior or excessive force during the course of his employment. The State opposed the application on a variety of grounds, including that defendant failed to present a factual predicate, i.e., proof of domestic violence or that there was relevant information in the personnel files. Following oral argument on September l4, 2007, Judge LeBon denied the motion. She reasoned that the information sought, i.e., that the victim had an explosive temper, was already available in witness statements; any behavior on the job was not necessarily relevant to an allegation of domestic abuse; and under State v. Kaszubinski, 177 N.J. Super. 136 (Law Div. l980) and State v. Jones, 308 N.J. Super. 15 (App. Div. l998), defendant had not made the requisite showing that information in the files would be relevant to the issue of domestic violence.

The court's rulings denying PCR relief were memorialized in an order of August 28, 2008. This appeal ensued.

On appeal, defendant argues:















Based on our review of the record and applicable law, we reject defendant's arguments. We affirm substantially for the reasons articulated by Judge LeBon on the record.

Rule 3:22-4 prohibits a defendant from raising issues in PCR proceedings that could have been raised in a prior proceeding. See also State v. McQuaid, 147 N.J. 464, 484 (1997). A petition for PCR is not a "substitute for appeal from conviction or for motion incident to the proceedings in the trial court." R. 3:22-3.

Nevertheless, Rule 3:22-4 provides a bypass to the procedural bar if the court finds "(a) that the ground for relief not previously asserted could not reasonably be raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." Although there is no bar against a claim of illegality of sentence, a claim of excessive sentence is barred. McQuaid, supra, 147 N.J. at 485. Defendant only challenges her sentence in terms of the alleged improper consideration of the aggravating and mitigating factors; she makes no claim the sentence she bargained for as part of her negotiated plea to the amended charge of aggravated manslaughter was outside of the statutory guidelines and an illegal sentence.

There is no question that defendant could have raised on direct appeal the arguments she submitted in her PCR petition. Defendant cannot assert that she was precluded from doing so by the plea agreement. Defendant was clearly informed by the sentencing judge in accordance with Rule 3:9-3(d) that even though she agreed not to appeal, she still had that right, but if she chose to do so, the State would have the right to withdraw the plea offer and reinstate the original charge.

Nor are we persuaded that the record supports a finding of the "fundamental injustice" or "constitutional violation" exceptions under the applicable law. The "fundamental injustice" exception, R. 3:22-4(b), is only applied in special circumstances, and the defendant bears the burden of proving its application by a preponderance of the evidence. State v. Mitchell, 126 N.J. 565, 587 (1992); see also State v. Martini, 187 N.J. 469, 482 (2006), cert. denied, 549 U.S. 1223, 127 S.Ct. l285, 167 L.Ed. 2d l04 (2007). Our State Supreme Court has explained that in order to prove a "fundamental injustice," a defendant must show the prosecution or judiciary abused the adversary process or, absent conscious abuse, that inadvertent errors mistakenly impacted a determination of guilt or otherwise caused a miscarriage of justice. Mitchell, supra, 126 N.J. at 587. Defendant's generalized arguments regarding this exception, as well as in support of the next exception, are insufficient to make her claim cognizable by way of PCR.

The final exception, R. 3:22-4(c), has been interpreted to allow courts to consider PCR petitions "when the defendant alleges that his [or her] constitutional rights were seriously infringed during the conviction proceedings." Id. at 585-86. However, "[c]loaking the claim in constitutional language will not guarantee relief. A court must scrutinize the assertion to ascertain whether constitutional rights are at issue." Id. at 586. Defendant voluntarily and knowingly agreed to the plea agreement, and all of its terms, in exchange for a downgrade of the charge and a reduced sentence.

Moreover, in addition to the procedural dissimilarities of Briggs, this record fully explains why defendant was asking the court to undercut the plea agreement. As set forth in the Prosecutor's April 5, 200l letter, the evidence, including statements by defendant, clearly indicated the crime was a purposeful murder, also unlike the defendant in Briggs. Under the negotiated plea, however, defendant was offered the opportunity to plead guilty to the lesser-included offense of aggravated manslaughter with a recommended sentence of thirty years/NERA and reduce by four and one-half years the mandatory minimum term for murder of thirty years without parole. Accordingly, as noted by Judge LeBon, defendant was not entitled to the exceptional relief -- a resentencing request -- she sought in her PCR application.

Moreover, Judge LeBon was not required to conduct an evidentiary hearing on the ineffective assistance of counsel claims because defendant did not establish a prima facie case in support of PCR relief. See State v. Murray, 162 N.J. 240 (2000); State v. Preciose, 129 N.J. 451, 462 (1992). On appeal, defendant merely points to the fact that the "testimony of defense counsel and witnesses to the victim's conduct towards defendant and the police, who investigated the case, were not presented" and defendant was "unable to confront the defense counsel regarding his certification submitted by the State."*fn4

Defendant then argues that "in a case of this magnitude, [she] should have been afforded an evidentiary hearing to establish her allegations [and] failure to grant one was error." We disagree. Defendant did not produce expert testimony that she suffered from post-traumatic stress disorder related to spousal abuse by the victim. See Briggs, supra, 349 N.J. Super. at 500. Nor did she challenge any of the statements contained in trial counsel's certification or specify exactly what mitigating evidence he should have presented at sentencing. Our review of the record indicates that defendant failed to adduce any facts which would demonstrate a "reasonable likelihood" that her claims would ultimately succeed on the merits. Preciose, supra, 129 N.J. at 463. Accordingly, the PCR judge's denial of an evidentiary hearing is unassailable.

We are also not persuaded that defendant established either prong of ineffective assistance of trial counsel. To successfully argue ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984). See also State v. Fritz, l05 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). Review of counsel's trial performance is "highly deferential." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.

Defendant does not challenge her conviction or the voluntariness of her plea. Instead, her challenge is to trial counsel's failure to enumerate potentially mitigating evidence at the sentencing hearing and failure to object to the presentation of allegedly improper victim impact evidence. Even if we were to assume such conduct was deficient, which we do not find it was, defendant fails to demonstrate, by a reasonable probability, the prejudice prong of Strickland. See id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. On appeal, defendant merely asserts in reliance on Briggs that if her trial attorney had argued "all available mitigating evidence" before the sentencing court, she "would have received a lesser sentence." As we previously discussed, defendant's reliance on Briggs is misplaced. Defendant further contends that because the videotape emphasized the fact that the victim was a police officer "made it likely that the sentencing court would consider the death of a police officer to be an 'aggravating factor' when determining defendant's sentence." As noted by Judge LeBon, however, the record is devoid of any reference by the sentencing judge to that consideration.

Defendant received a negotiated sentence for aggravated manslaughter for which the record indicates the State had sufficient evidence to pursue the indicted charge of murder, including defendant's admissions. Defendant believed the plea agreement to be fair, knowing the strength of the State's evidence, and she does not challenge her knowing and voluntary acceptance of the "package," which afforded her a reduced sentence.

After being apprised of the specific reasons for the plea agreement, accepting the factual basis for the plea, and hearing arguments of counsel with respect to the sentencing, Judge Schlosser made an independent assessment of the aggravating and mitigating factors, found aggravating factors #2 and #9 outweighed mitigating factors #7 and #12, and accepted the plea agreement as "fair" and "in the interest of justice." Accordingly, the court sentenced defendant, within the statutory guidelines, to thirty years imprisonment subject to NERA: Defendant was then properly informed in accordance with Rule 3:9-3(d) that her agreement "not to appeal" did not restrict this right but gave the State the opportunity to withdraw its plea offer if she chose to appeal. Defendant has not asserted a valid basis under the law to challenge her sentence.

Defendant also challenges the sentencing court's admission of the victim impact evidence and the PCR court's denial of her motion for discovery of the victim's personnel file. Both are discretionary rulings, which we discern no basis to second-guess under the factual and procedural circumstances of this case. See State v. Muhammad, 145 N.J. 23, 47 (1996); Kaszubinski, supra, 177 N.J. Super. at 141.

Finally, defendant's argument that submission of her trial counsel's certification constituted a violation of the attorney-client privilege entitling her to an evidentiary hearing is likewise without merit. Neff's certification does not reveal confidential information. It generally describes his explanations to defendant about the plea offer, her potential exposure, and plausible defenses and aggravating and mitigating factors. Defendant does not dispute that she had these discussions with her trial counsel.


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