April 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD TUCK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-01-00038.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2010
Before Judges Stern and J. N. Harris.
This is an appeal from the denial of defendant's application for post-conviction relief (PCR). We affirm.
On December 28, 2002, while defendant supposedly was intoxicated, he shoplifted a karaoke machine from a Toys-R-Us store in Watchung, blatantly ignored an employee's request to stop, and hurried past the exit into the parking lot fleeing towards his motor vehicle. An off-duty Union County Sheriff's Officer, who happened to be present, was alerted as to defendant's conduct. The officer promptly followed defendant to his vehicle, and asked defendant to return to the store to await police. Although defendant initially complied with the officer's request, defendant instead turned and fled with the officer in hot pursuit. In an ensuing confrontation, defendant picked up a wooden board and threatened to use it against the officer in an attempt to escape. Thereupon, defendant entered his vehicle and retrieved a metal tire tool, which he also used to threaten the officer. Ultimately, defendant was apprehended, indicted, and entered a plea of guilty to first-robbery, N.J.S.A. 2C:15-1(a)(2).
In exchange for his guilty plea, the State promised defendant that it would recommend a sentence of "[twelve years] incarceration with 85% to be served without parole." At the time of defendant's guilty plea, on March 31, 2003, he had been already been convicted of five indictable offenses beginning in 1970, with the last such conviction occurring in 1984. At the plea allocution hearing, the prosecutor believed that defendant was "extended term eligible," but she admitted that she "[hadn't] done the math on that." Nevertheless, the court indicated, "he's eligible for life in prison, [twenty-five] without parole would be his potential sentence;" later on, the court said to defendant, who claimed he was presently unaware of the magnitude of his potential sentencing exposure, "[s]o as far as you're concerned, twelve years and 85% without parole is better than [twenty] years and 85% without parole, is that the equation for you?" Defendant responded, "[y]es, your honor." The court repeated to defendant, "[a]nd you understand that given the nature of the charges, that you're going to serve 85% of your term without parole before you become eligible?" Again, defendant responded, "[y]es, your honor."
At sentencing, no mention was made about a possible extended term by the State. Indeed, the prosecutor argued to the sentencing court that "[d]efendant has received the benefit of a generous plea offer. He could have been sentenced to [twenty] years with 85% without parole." Nevertheless, the sentencing judge remarked that several factors of mitigation--defendant's age, history of substance abuse, and nature of the crime--were "taken into consideration at the time the plea bargain was reached. Because you're entitled to an extended term of incarceration, yet the State agrees to a plea bargain that is something even less than [the then] presumptive term."
The sentencing court concluded that aggravating factors three, six, and nine were appropriate.*fn1 It found only mitigating factor four was applicable.*fn2 Accordingly, the judge sentenced defendant to the precise terms of the plea arrangement: twelve years of incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant pursued a sentencing appeal pursuant to Rule 2:9-11, which ultimately did not result in a change of the sentence. State v. Tuck, No. A-2676-03 (App. Div. Jan. 12, 2005), certif. den. 183 N.J. 587 (2005).
Defendant commenced the instant PCR application on May 27, 2005. Counsel was assigned to represent defendant at the argument of defendant's motion for PCR and at the evidentiary hearing conducted before the same judge who had initially sentenced defendant.*fn3 Three witnesses testified at the evidentiary hearing: defendant; defendant's former defense attorney when the guilty plea was entered; and defendant's ex-brother-in-law, who happened to be a licensed New Jersey attorney.
Following the hearing, Judge Edward M. Coleman rendered an oral decision denying defendant's PCR application. Judge Coleman found that defendant's claim regarding ineffective assistance of counsel was plainly unfounded. He held that defendant's recollection of discussions with defense counsel was not credible; to the contrary, the court found the testimony of the former defense attorney "to be the credible testimony in the case." The judge rejected defendant's factual claims of (1) being pressured into making the guilty plea, (2) suffering from an inadequate investigation by the defense attorney, (3) not receiving appropriate advice to file a motion to suppress the statement to the police, and (4) defense counsel's failure to address the possible defense of defendant's intoxication on the date of the offense. This appeal followed.
Defendant makes the following points on appeal:
A. MR. TUCK WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
i. THE FIRST PRONG OF STRICKLAND IS MET HERE BECAUSE TRIAL COUNSEL'S PERFORMANCE WAS SIGNIFICANTLY DEFICIENT AND MATERIALLY CONTRIBUTED TO MR. TUCK'S WRONGFUL CONVICTION.
ii. THE SECOND PRONG OF STRICKLAND IS MET HERE BECAUSE THERE IS A REASONABLE PROBABILTY THAT THE RESULT OF THE PROCEEDING WOULD HAVE BEEN DIFFERENT BUT FOR TRIAL COUNSEL'S UNPROFESSIONAL ERRORS.
B. DUE PROCESS OF LAW ENTITLES MR. TUCK TO WITHDRAW HIS PLEA AGREEMENT.
C. THE SENTENCE IMPOSED UPON MR. TUCK BY THE TRIAL COURT WAS IMPROPER, ILLEGAL AND/OR OTHERWISE UNCONSTITUTIONAL.
After a thorough review of the record, including the array of briefs and exhibits submitted by the parties, we are unable to identify any errors of law, much less any deprivations of due process of law. We conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add the following brief comments.
To prevail on a claim of ineffective assistance of counsel, defendant must show that defense counsel's performance was deficient and that those deficiencies materially contributed to the conviction. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Defendant complains that his defense counsel failed by not suggesting that a motion to suppress defendant's statement could be filed; by giving him "no other choice but to plead guilty;" by not providing him with a complete copy of discovery, by not moving to dismiss the indictment; and lastly by failing to call witnesses on behalf of defendant at the time of sentencing.
As a result of the evidentiary hearing, the PCR judge concluded that defense counsel's testimony regarding the satisfaction of all of defendant's concerns was more credible than the version presented by defendant. We conclude the trial court's findings are adequately supported by sufficient credible evidence, State v. Locurto, 157 N.J. 463, 472 (1999), and will not be disturbed on appeal.
We further note that the case against defendant was extremely powerful even in the absence of the voluntary statement, especially in light of the multiple witnesses who observed defendant's criminal behavior at the scene. Moreover, it is well to recall that defendant was the beneficiary of an extremely generous plea arrangement. Defendant fails to persuade us as to how a group of additional witnesses at his sentencing could have contributed to the sentencing judge's analysis. The evidentiary hearing firmly and properly established that defendant was not denied the effective assistance of counsel.
Defendant next argues that he made the guilty plea involuntarily, due to the putative ineffective assistance of counsel, and therefore he should now be permitted to withdraw the plea. A motion to withdraw a guilty plea is committed to the judge's sound discretion. State v. Slater, 198 N.J. 145, 156 (2009); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). That discretion should ordinarily be exercised liberally by the court only where the motion is made before sentencing. Slater, supra, 198 N.J. at 156 (internal citations omitted). "In a close case, the 'scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).
Defendant bears the burden to demonstrate that fairness requires withdrawal of his plea and to make that showing upon a balance of all competing factors. State v. Russo, 262 N.J. Super. 367, 372-73 (App. Div. 1993). Specifically, those factors are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58 (internal citation omitted).
We fail to see how defendant has satisfied factors one through three, in light of the paucity of credible evidence that he presented at the evidentiary hearing. Under the totality of the circumstances, we are convinced that despite his protestation to the contrary, defendant's guilty plea in response to the State's remarkably indulgent offer was virtually guaranteed.
Finally, concerning the sentencing itself, we previously rejected defendant's contention of excessive sentence on direct appeal. He is not permitted to raise it again in this PCR application. R. 3:22-5. Moreover, a claim of excessiveness of sentence is not cognizable in an application for PCR. State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). Defendant could and should have raised this challenge on direct appeal. He is procedurally barred from now doing so. R. 3:22-4. There was nothing amiss in the substance or procedure of that proceeding that resulted in the sentencing judge imposing the agreed-upon sentence.
Based on our review of the record and the applicable law, we conclude that the PCR court correctly applied well-settled legal principles. We therefore affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Coleman in his thorough oral decision rendered on March 18, 2008.