May 18, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK GOODSON A/K/A MARC S. GOODSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment Nos. 02-02-00083-I and 02-08-00364-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2010
Before Judges Rodríguez and Chambers.
Defendant Mark Goodson appeals from the denial of his first petition for post-conviction relief (PCR). The petition alleged: ineffective assistance of trial counsel for not conducting an appropriate investigation and errors in sentencing. We reverse and remand for an evidentiary hearing.
In August 2003, defendant was found guilty, following a jury trial, of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and third degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1). The State moved for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f). The judge granted the motion, merged the convictions, and imposed a ten-year term with a five-year parole disqualifier. These charges were listed in Salem Indictment No. 02-08-00364-I.
Then, defendant pleaded guilty, without the benefit of a plea agreement, to unrelated charges listed in Salem Indictment No. 02-02-00083-I. The charges were: second degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2); third degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); and possession of a CDS with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7. The judge merged the convictions and imposed an extended ten-year term with a three-year parole disqualifier, to run consecutive to the terms imposed following the jury trial.
On direct appeal, we affirmed the convictions, but remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005). State v. Goodson, No. A-3968-03T4 (App. Div. Mar. 24, 2006), certif. denied, 188 N.J. 356 (2006). We have not been provided with the judgment of conviction following remand.*fn1
The proofs can be summarized as follows: on April 10, 2002, Salem County Prosecutor's Investigator Steven Dick received information from a reliable confidential informant that defendant was going to be making deliveries of cocaine at several locations in Carneys Point. The informant told Dick that defendant would be driving a tan Ford Taurus from his home on East Broadway and that narcotics could be located in either the front protective covering on the front of the vehicle or the gas cap area. The informant also relayed the approximate time that defendant would deliver the cocaine.
Detectives from the Salem County Prosecutor's Office coordinated a surveillance team. Around 8:00 p.m., Investigator John Pelura saw defendant park a gold Ford Taurus in front of defendant's residence. Defendant went inside and came back out within two minutes. Pelura saw defendant stand near the rear end of the car, facing the gas cap area. Then defendant drove away. Pelura lost sight of defendant's car for about five minutes. When Pelura spotted the car again, a sixteen-year-old girl (G.M.) was driving it and defendant was the sole passenger.
Dick radioed for a marked State Police car to stop defendant's car in Carneys Point. Dick arrived shortly thereafter and advised defendant that he was under investigation for allegedly transporting illegal drugs. He asked for consent to search the car. Defendant said he did not have any drugs on his person or in the car, which belonged to a girlfriend. He signed a standard consent to search form. An officer from the K-9 unit responded to the scene. The dog signaled an alert at the gas cap area on the passenger's side of the car. The officers opened the gas cap compartment and found twenty-three small bags of cocaine. Defendant was arrested.
At the Carneys Point police station, Salem County Prosecutor's Sergeant Brian Facemyer interviewed defendant. He read defendant his Miranda*fn2 rights. Defendant signed a Miranda waiver form and then gave a statement, confessing to possessing the cocaine. He said that he was going to sell it for $200.
At a pretrial hearing, the judge denied defendant's motion to suppress the cocaine. The judge found that "the confidential informant was, indeed, reliable in the legal sense, that the stop was constitutionally permissible, and, that the consent to search was knowingly and voluntarily entered into." At trial, defendant maintained that he lied during the statement to protect G.M. so that she would not be charged with the crimes. He maintained that the drugs were not his and that they were probably placed in the car by his brother.
Defendant filed a PCR petition, alleging that: (a) the prosecution filed the motion for an extended term outside of the fourteen-day time limit after arraignment; (b) the prosecutor gave no clear indication that he would seek an extended term; and (c) the judge never gave any reason for the imposition of a consecutive sentence. Defendant also submitted to the court a typewritten statement from G.M., which was unsworn and dated "Sept. 03." This date was approximately one month after defendant was sentenced.
In the statement, G.M. claimed defendant came to pick her up at approximately 8:00 p.m. on April 10, 2002. She saw defendant's brother "fiddle" with the car's gas cap just before defendant got out of the car so that she could drive. She said she was subpoenaed to testify at trial, but when she arrived at court, defendant's trial attorney told her she was not needed. Two days later, she received a letter in the mail from defendant saying that his attorney told him she never showed up to testify.
The judge denied defendant's PCR petition, finding that defendant was advised of the potential for an extended term and consecutive sentences and that the prosecutor had indeed filed the necessary motion. As to the purported statement by G.M., the judge concluded that the issue was procedurally barred because defendant failed to raise it on direct appeal, in a motion for a new trial during the sentencing remand, or in his "exhaustive" PCR brief.
Defendant now appeals the denial of his PCR, contending that:
THE [PCR] COURT ERRED IN CONCLUDING THAT DEFENDANT ASSERTED GROUNDS FOR RELIEF WERE PROCEDURALLY BARRED.
THE [PCR] COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel's Failure To Investigate And Prepare For Trial With Respect To Salem County Indictment No. 02-08-00364-I Constituted Ineffectiveness Of Counsel.
B. With Respect To Salem County Indictment No. 02-02-00083-I, Trial Counsel's Failure To Object To The Imposition Of An Extended Term Due To The State's Failure To File A Timely Motion For A Mandatory Extended Term Constituted Ineffectiveness Of Counsel.
THE [PCR] COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
We disagree that trial counsel was ineffective with regard to defendant's sentence and find that the issue is procedurally barred. However, we agree that the judge should have granted an evidentiary hearing regarding the allegation of ineffective assistance with respect to the statement by G.M. that she was willing to testify for the defense. Therefore, we remand the matter for an evidentiary hearing.
Rule 3:22-4 bars any PCR claim not raised in a prior proceeding, unless the judge finds: "(a) that the ground for relief not previously asserted could not reasonably have been 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."
Here, the allegation that trial counsel was ineffective for failing to object to the imposition of an extended term is procedurally barred. It should have been raised on direct appeal along with all other sentencing issues. This issue could have been resolved by reference to the trial record.
Moreover, if we addressed the merits, defendant would not prevail. Defendant maintains the prosecution failed to file a timely motion for the extended term and failed to make sure he was aware that the extended term might be imposed. See State v. Cartier, 210 N.J. Super. 379, 381 (App. Div. 1986) ("[A]n extended term cannot be imposed unless the defendant is specifically apprised at the time of the plea of the potential number of years to which he is exposed.")
However, the judge found that "there indeed was a motion filed for an imposition of extended term . . . and it sets forth all the reasons for the extended term, particularly the mandatory extended term." The State has produced a copy of its February 1, 2004 motion for an extended term. Defendant pled guilty on January 13, 2004. Though this motion fell slightly outside the fourteen-day notice requirement, the time for filing the motion may be extended for good cause. R. 3:21-4(e). Defendant has produced nothing to demonstrate that an extension was not granted, or that good cause did not exist.
The judge also found that defendant "was advised clearly by the Court that there . . . was a mandatory extended term potential." Our review of the record indicates defendant was indeed notified of the potential that an extended term may be imposed. For example, at the time of the open plea, the following exchange occurred:
PROSECUTOR: Mr. Goodson, my understanding is you're currently serving a State Prison sentence. I think the aggregate term is like [eighteen] years, something like that?
Q: You're aware that you could receive a sentence on top of that, that this sentence could be consecutive; in fact, it's likely to be consecutive --
Q: -- to that? Okay. There was also some discussion -- I inherited this case from somebody else -- that you may be subject to an extended term.
Q: My review is you're already serving an extended term and I believe the case law is such that I could -- move, but it should not be granted --
Q: -- that you should get a second extended term, that you're likely, because it was all one incident, the maximum is probably a ten do five on top of what you're currently serving; --
Q: -- Are you aware of that? And, based on that you still want to plead guilty?
Conversely, defendant's argument that his counsel was ineffective for failing to fully investigate his case and produce G.M. as a witness is not procedurally barred. Having found that defendant's claim was barred by Rule 3:22-4, the judge did not address the merits of defendant's ineffective assistance of counsel claim. Rather, he concluded that defendant's failure to argue the issue on appeal amounted to a failure of proving the first prong of an ineffective assistance of counsel claim and thus denied defendant an evidentiary hearing on that basis.
In New Jersey, defendants are rarely barred from bringing ineffective assistance of counsel claims during post-conviction review. State v. Preciose, 129 N.J. 451, 460 (1992). Further, G.M.'s statement was not part of the trial record. Thus, defendant's argument could not have been raised on direct appeal. See State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) ("Ineffective assistance of counsel claims are particularly suited for post-conviction review because they involve allegations and evidence that lie outside the trial record and, therefore, often cannot reasonably be raised in a prior proceeding.").
Here, the issue regarding the G.M. letter could not be resolved by a review of the trial record and therefore could not have been raised on direct appeal. The G.M. statement on its face establishes that a witness had firsthand information that, if believed by the jury, could exonerate defendant. Therefore, the PCR judge should hold an evidentiary hearing and address the issue on its merits. Trial counsel should give testimony as to his reasons for not calling G.M. We have no view of the merits of defendant's application.
Reversed and remanded for an evidentiary hearing. The Appellate Division retains jurisdiction.