On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-03-5931.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Carchman and Ashrafi.
Defendant Wilkie Smith appeals an April 1, 2008 order of the Law Division denying his petition for Post-Conviction Relief (PCR). The conviction from which defendant seeks relief was derived from the entry of a plea to third-degree eluding, N.J.S.A. 2C:29-2b, and the resulting sentence of one year probation together with statutory fines and penalties.*fn1 We affirm.
The factual circumstances giving rise to the plea arose from a dispute between defendant and co-defendant Ricardo Whilby, who was the brother of defendant's girlfriend. It appears that on September 1, 2000, Whilby and defendant were involved in an altercation, wherein Whilby brandished a knife.*fn2
The next day, Whilby contacted the police and alleged that defendant and Michael Fenner displayed a handgun, threatened to "blow [Whilby's] head off" and then drove away. After defendant and Fenner drove off, Whilby followed in his vehicle and called the police. The police then engaged in a chase using a siren and displaying flashing lights. The arresting officer, John Abraham, relying on Whilby's initial account of the incident, reported the chase as follows:
Mr. Smith lowered the handgun, drove the Ford through the parking lot, and fled east on Forest Avenue. Mr. Whilby said he immediately contacted the Englewood Police Department, who in turn contacted the Teaneck Police Department. Mr. Whilby said he then followed the Ford on Forest Avenue, at a distance, so he could report [defendant]'s and Mr. Fenner's movements to the police.
Mr. Whilby said he observed the Ford turn north on Loraine Avenue, and by the time he reached that intersection, he observed that the Ford was stopped, southbound on Loraine Avenue, with [defendant] still behind the steering wheel. The victim also stated he observed Mr. Fenner run out of a house on the east side of Loraine Avenue, north of Rosemont Place. The victim again called the Teaneck Police to update them of the situation.
Teaneck Dispatch did so, and as I traveled east on Forest Avenue, in Motor patrol Car Twelve, at Madison Avenue, I observed the Ford travel west on Forest Avenue, occupied by two black males. I immediately turned around, and with my emergency lights and sirens, attempted to stop the Ford. The driver accelerated as I approached, and continued west on Forest Avenue. I immediately contacted Teaneck Police Headquarters, and advised them of my situation and location. I also advised the road patrol supervisor, Sergeant O'Reilly.
As I pursued, [defendant] turned north on Arlington Avenue, then turned quickly west on Fairview Avenue. By this time, Officer Finely joined the pursuit as the secondary police vehicle. Officer Nogueras followed Officer Finely, in case any contraband was discarded, and was not in pursuant. The driver continued to flee, on Arlington Avenue, then turned north on Overlook Avenue, then west on Circle Avenue, then turned north on Overlook Avenue, then west on Circle Driveway. During the entire pursuit, my emergency lights and sirens were activated. The actor then turned north on Teaneck Road, then west on Bedford Avenue. At Bedford Avenue, the driver was blocked by a vehicle exiting the "7-11" store parking lot, located at 1247 Teaneck Road. The driver then turned the Ford in the street, and attempted to drive through the parking lot of the "Jersey Oil" service station, located at 1261 Teaneck Road.
There [too], [defendant] was once again blocked by traffic, and could not move the Ford. Officer Finley and I immediately pulled behind the vehicle, and requested that the gas attendant and customers leave the area. Lieutenant Kazinci, Sergeant O'Reilly, Officers Haase, Careccio, Adomilli, Dunnigan, and Nogueras, responded within seconds. During the entire pursuit, I was in constant contact with Sergeant O'Reilly and Teaneck Dispatch. Traffic was light, road conditions were clear, and our speeds were never higher than thirty-five miles per hour.
As a result of both the original fight and the subsequent incident with the handgun, defendant was charged with third- degree terroristic threats, N.J.S.A. 2C:12-3a; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); third-degree eluding a police officer, N.J.S.A. 2C:29-2b; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Fenner was also charged with related offenses.
Defendant was originally represented by the public defender's office. Counsel secured an investigator who interviewed a series of witnesses and then analyzed defendant's route during the eluding. Apparently, there was some discrepancy as to whether defendant's vehicle was traveling the wrong way on a one-way street although the officer later testified to that fact before the Grand Jury. In addition, counsel secured an order permitting an in-camera review of an Internal Affairs investigation of Officer Abraham, who was the subject of a departmental investigation.
Thereafter, defendant dismissed the public defender and retained Larry McClure to represent him, as defendant was dissatisfied with counsel provided by the public defender's office. McClure was retained on May 24, 2002, for a trial that was scheduled for June 30, 2002. According to defendant, McClure was not prepared for trial, never spoke to defendant prior to trial, did not subpoena witnesses and "intentionally frightened me into doing something [agreeing to plead guilty] that I never wanted to do."
At trial, defendant entered a plea of guilty to the eluding charge, and the State agreed to dismiss the other charges. McClure represented at the plea hearing that he was prepared to try the case. As defendant described the circumstances in his certification:
On the trial date I was a nervous wreck. I was really scared particularly because none of my witnesses were at court. Attorney McClure finally showed up at the court and he now [started] to tell me that I was going to go to jail if I didn't make a plea bargain because a Bergen County jury would never believe an African American. I asked him about my witnesses and he said that he guessed they didn't care about me and that I would have to lose if they weren't there. I never knew that the witnesses weren't needed the first day of trial. After speaking with my current OPD lawyer I learned that in a normal case the jury is picked, the State puts on their case and that defense witnesses are never expected to testify on the very first day. I didn't know that and I believed Attorney McClure when he lied to me.
The plea hearing presented a different scenario. At the plea hearing, McClure set forth the nature of the plea discussions. He said:
MR. MCCLURE: Yes, your Honor. For purposes of the record, yesterday during discussions with the Prosecutor as to this indictment which includes allegations of possession of a weapon, threatening an individual with a weapon and terroristic threats along with a 3rd degree eluding. The Prosecutor amended the plea offer to eluding and terroristic threats. I presented that to my client and that was rejected by him. Today the Prosecutor indicated to me that they were merely able to accept the plea to eluding and dismiss the other counts of the indictment. I discussed that in great detail with my client who has indicated to me that he does not believe that that's an acceptable plea, that he doesn't feel comfortable that he could factually present up the appropriate facts to constitute the eluding. My concern is, and I expressed it to him, is that we have one of the acts is a Graves Act count which involves mandatory jail; we have confidence that we'll be able to defend that but it will be up to the jury to decide, but I wanted to confirm with him on the record in the presence of the Court that I discussed this latest offer with him and it's his election to go to trial.
The following colloquy then took place:
THE COURT: Do you have any difficulty understanding English?
THE Defendant: Not at all.
THE COURT: Either spoken or written?
THE COURT: You've had an opportunity to speak with your attorney?
THE DEFENDANT: Yes I have.
THE COURT: You're satisfied with the services that he's rendered to you?
THE COURT: Okay now do you fully understand the possible exposure that you face on these potential charges - - I emphasize "potential charges" depending on what might or might not happen during the course of the trial?
THE COURT: You have an absolute right to have a trial; do you understand that?
THE COURT: To call witnesses, you don't have to enter into a plea but what I wanted you to understand would be the possible exposure that could result in the event a jury was to find differently, all right, basically that's the purpose of the plea agreement extended to you, you will ultimately make the decision but I want to make sure that you have discussed this in full, that you understand everything and there's no question in your mind as to the plea and then you can make a decision.
Now having said all of that, do you wish to accept or reject the plea offer?
THE DEFENDANT: I wasn't given anything definite as far as the plea offer, all I was told was to plead guilty to the eluding charge, not knowing, you know, to the extent of what my plea will bring, how much jail time or what have you and - -
MR. MCCLURE: - - I did explain to you that - -
THE COURT: Let's go through that.
MR. MCCLURE: I did explain to you, did I not, that the eluding is a 3rd degree charge, you have no prior record so therefore you would have a presumption of nonincarceration, it would ultimately be up to the Court based on all my experience under those facts, you would be looking at a probationary term and the Prosecutor has no objection to probation. We would have to convince the Judge in terms of the length of that probation, it could be no probation, it could be a year, it could be up to probation under that particular statute.
The parties then engaged in an extended discussion regarding the possibility of Pre-trial Intervention, and the prosecutor then explained that he had secured the approval of the assignment judge to dismiss the two Graves Act offenses that involved a substantial mandatory jail sentence. The State indicated that it would be recommending probation. The judge then addressed defendant:
THE COURT: All right, there you have it, the State would be recommending probation. Do you want a ...