May 7, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIE REID, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-06-0650.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2010
Before Judges Graves and Sabatino.
Defendant Willie Reid appeals from an order dated December 3, 2007, denying his petition for post-conviction relief (PCR).
After reviewing defendant's arguments in light of the record and the applicable law, we affirm.
Defendant was charged in a three-count indictment with first-degree robbery, in violation of N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon (a handgun) with a purpose to use it unlawfully, in violation of N.J.S.A. 2C:39- 4(a) (count two); and third-degree unlawful possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b) (count three). Pursuant to a negotiated plea agreement, defendant pled guilty to first-degree armed robbery. In exchange for the guilty plea, the State agreed to recommend that defendant be sentenced as a second-degree offender to a five- year prison term under the No Early Release Act, N.J.S.A. 2C:43-7.2. The State also agreed to recommend that counts two and three of the indictment would be dismissed at sentencing.
At the plea hearing on February 9, 2005, defendant testified he had reviewed the plea form with his attorney, and he understood everything in the form. He further testified that he had an opportunity to review discovery, including the police reports and the indictment with his attorney, he understood the charges and the plea agreement, and he was satisfied with the services provided by his attorney. Defendant also confirmed that he entered into the plea agreement voluntarily, without any threats or promises that were not set forth in the plea form and stated on the record.
When the court questioned defendant regarding the events that occurred on September 28, 2003, defendant testified as follows:
Q: Okay. Mr. Reid, on September 28, 2003 were you in Elizabeth, sir?
Q: And did you have an altercation with Henry Deon, or Deean (phonetic), and/or Cesar Deean, and/or Carlos Armandaros (phonetic), and/or Israel Raiva (phonetic), and/or Luis Raiva?
Q: During the course of that altercation did you have a deadly weapon?
Q: What did you have?
A: A gun.
Q: What type of gun was it?
Q: Okay. Did you threaten those people, or any one of them, with that weapon in an attempt to take something from them?
Q: What did you try to take?
A: Their money.
Q: Their money?
Q: All of them or just one or more of them? How many?
Q: One? Did you know which one?
Q: No? Just one of these?
Q: And did you threaten them with the gun in an attempt to take that money?
Prior to sentencing, defendant filed a motion to withdraw his guilty plea. During oral argument on March 24, 2006, defendant's new attorney stated that defendant believed his former attorney "was incompetent," and that defendant was no longer "comfortable with" his plea because "[h]is factual basis [did not] line up with what he believes occurred in this matter." Following oral argument, the court denied defendant's motion, finding that defendant's first attorney was not ineffective and defendant's "whimsical change of mind" was not an adequate reason for allowing defendant to withdraw his plea.
After defendant's motion was denied, he was sentenced in accordance with the plea agreement.
Defendant did not file a direct appeal. However, he filed a petition for PCR claiming "lack of proper representation." Following oral argument on December 3, 2007, the court found that defendant was fully advised of the consequences of his plea and there was no evidence to support his claim that his attorney was ineffective.
On appeal, defendant presents the following arguments:
DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO OBJECT TO THE INADEQUATE FACTUAL BASIS FOR DEFENDANT'S PLEA. (NOT RAISED BELOW)
A. TRIAL COUNSEL'S FAILURE TO MAKE A TIMELY OBJECTION TO THE FACTUAL BASIS FOR THE PLEA CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
B. TRIAL COUNSEL'S FAILURE TO MAKE A TIMELY OBJECTION TO THE INADEQUATE FACTUAL BASIS FOR THE PLEA PREJUDICED DEFENDANT.
DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO ADEQUATELY INFORM DEFENDANT ABOUT MATERIAL CONSEQUENCES OF HIS PLEA.
A. TRIAL COUNSEL'S FAILURE TO ADEQUATELY INFORM DEFENDANT ABOUT THE MATERIAL CONSEQUENCES OF THE PLEA CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
B. TRIAL COUNSEL'S FAILURE TO ADEQUATELY INFORM DEFENDANT ABOUT THE MATERIAL CONSEQUENCES OF THE PLEA PREJUDICED DEFENDANT.
DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO PRESENT ANY MITIGATING FACTORS ON BEHALF OF DEFENDANT THEREBY EXPOSING DEFENDANT TO AN UNREASONABLE TERM OF YEARS.
A. TRIAL COUNSEL'S FAILURE TO PRESENT ANY MITIGATING FACTORS OR ARGUE AGAINST THE AGGRAVATING FACTORS ACCEPTED BY THE COURT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
B. TRIAL COUNSEL'S FAILURE TO PRESENT ANY MITIGATING FACTORS OR ARGUE AGAINST THE AGGRAVATING FACTORS PREJUDICED DEFENDANT.
We conclude from our review of the record and briefs that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
With respect to defendant's first point, we note that robbery is a first-degree offense if in the course of committing a theft, or an attempted theft, the actor "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). In this case, defendant admitted he possessed a revolver and used it to threaten one or more of the victims in an attempt to take their money. Under these circumstances, there was an adequate factual basis for defendant's plea, and defense counsel was not ineffective for failing to object to the factual basis. In addition, we note that defendant would not have received a better sentence even if he entered a guilty plea to second-degree robbery, because he was sentenced to five years in prison, the minimum term for a second-degree offense. N.J.S.A. 2C:43-6(2).
Given the trial court's findings of fact, which are supported by the record, we find no mistaken exercise of discretion by the trial court in denying defendant's motion to vacate his plea. See State v. Slater, 198 N.J. 145, 157 (2009) (stating that "a change of heart" or a "whimsical change of mind" by a defendant is not an adequate basis to set aside a plea). Moreover, based on our independent review of the entire record, we agree there is no basis to conclude that defendant received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) (requiring a defendant to show that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
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