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State v. Smith


June 1, 2010


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-03-5931.

Per curiam.


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.

[(Emphasis added).]

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 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 - -

THE COURT: Well - -

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 moment to speak to your attorney?

THE DEFENDANT: No, I'll go ahead and plead to the case.

THE COURT: Are you sure that you don't want to speak to Mr. McClure?

THE DEFENDANT: We've gone over it.

THE COURT: I just want you to understand --

THE DEFENDANT: I understand.

THE COURT: - - clearly, what the possible exposure is, what your rights are and for you to make an intelligent knowing and voluntary decision, I don't want you to feel that somebody is rushing to do this, that you have to do this. This has to be your own decision after consultation with your attorney.

THE DEFENDANT: I'm ready, your Honor, thank you for the opportunity, though.

Finally, the judge again addressed defendant and made the following inquiries:

THE COURT: Okay. Mr. Smith, do you understand what you are charged with in this case?


THE COURT: Your attorney says that you want to enter a guilty plea to these charges; is that correct?


THE COURT: Have you discussed the charges and your plea with your attorney?


THE COURT: Has he explained the charges to you?


THE COURT: Have you had enough time to discuss the matter with your attorney?


THE COURT: Do you need any further time with him?

THE DEFENDANT: No, not at this time.

THE COURT: Has he answered any questions that you have?


THE COURT: Are you satisfied with his services?


THE COURT: I have a form in front of me entitled Plea Agreement which has on it signatures that seem to be those of the Prosecutor, your attorney and you; do you recognize that form?


THE COURT: Did you sign the form?


THE COURT: Are all the statements set out on that form true?

THE DEFENDANT: Yes they are.

THE COURT: Can you read and write English?


THE COURT: Did you read it and understand it before you signed it?


THE COURT: Did you discuss it with your attorney?


THE COURT: Are all the statements on that form accurate and correct?

THE DEFENDANT: Yes they are.

THE COURT: Is anybody forcing you to enter this plea?


THE COURT: Are you doing it of your own free will?


THE COURT: Now earlier I went through some questions with regard to your understanding, your education, is there anything that would impair your ability to understand this plea agreement?

THE DEFENDANT: Not at all.

THE COURT: And by that I mean whether you have taken any medication, drug or any substance of any nature that would affect your ability to understand?

THE DEFENDANT: Not at all.

THE COURT: Do you have any medical condition that would affect your ability to understand this plea?

THE DEFENDANT: No, I have not.

THE COURT: Do you have any questions?


THE COURT: Did you hear your attorney and the Prosecutor tell me if I accept your guilty plea, the Prosecutor will recommend a non-custodial term?


THE COURT: Was that - - did your attorney explain all of that to you?


THE COURT: If I do not accept the recommendation, do you understand that you could withdraw your plea and go to trial?


THE COURT: You also understand that no one can make any promises or representations or agreements on my behalf?


THE COURT: You also understand any such trial you're presumed innocent and the State has the burden of proving beyond a reasonable doubt that you are guilty?


THE COURT: Do you understand at such a trial you have the right to represented by your attorney, to be confronted by the witnesses against you and to have your attorney cross-examine those witnesses?


THE COURT: You also have a right to compel witnesses to appear on your behalf?


THE COURT: You also have a right to testify on your own behalf, if you choose to do so, or remain silent if you choose to do that?


THE COURT: Do you understand if you go to trial and not testify on your own behalf, the Prosecutor would not have a right to and could not argue that your silence in some way indicated that you're guilty?


THE COURT: Do you understand that?


THE COURT: Do you understand by pleading guilty you are waiving or giving up all of those rights, the rights to a trial and the other rights that I have described?


THE COURT: Do you understand by pleading guilty you're admitting to the truth of the charges against you?


THE COURT: Do you understand everything I have said to you today?


THE COURT: In view of all these questions and answers we have just gone through, do you still wish to plea guilty in this matter?


Counsel then proceeded to obtain a factual basis for the plea wherein defendant, who had been sworn, set forth a sufficient factual basis to support the charge of eluding. The judge accepted the plea and then three months later sentenced defendant to the probationary term. At the time of sentencing, defendant did not raise any issues regarding the plea or McClure's representation.

Defendant did not appeal from the judgment of conviction, which was entered on September 19, 2002. On January 29, 2007, defendant filed his PCR. For the first time, he raised the issue of ineffective assistance of counsel. Among other issues, he alluded to McClure's ethical problems, including his suspension and ultimate disbarrment. Defendant asserts that he was unaware of McClure's ethical problems, and Officer Abraham's disciplinary issues were not explored by McClure during his representation of defendant.

The trial judge denied the PCR. Although he erroneously alluded to the bar of R. 3:22-4*fn3 , he also found that defendant did not establish a prima facie case, was not entitled to a hearing and failed to demonstrate a sufficient basis for granting relief. This appeal followed.

On appeal, defendant raises the following issues:





i. Larry McClure Was Deficient.

ii. Petitioner Was Prejudiced.



We first set forth the appropriate standards that apply when considering an application for post-conviction relief. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987); see also State v. Allegro, 193 N.J. 352, 366 (2008) (citing State v. Loftin, 191 N.J. 172, 197-98 (2007)). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L.Ed. 2d 1075 (1963), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Perry, 124 N.J. 128, 153-54 (1991).

In assessing the first prong, a court must determine whether counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (citation and internal quotation marks omitted). As noted, in considering the conduct of counsel, there is a strong presumption that such conduct "falls within the wide range of reasonable professional assistance." Ibid. (citation and internal quotation marks omitted). Defendant must demonstrate that counsel's action "did not equate to sound trial strategy." Ibid. (citation and internal quotation marks omitted). As the Supreme Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15 (citations, internal quotation marks and editing marks omitted)).] The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S.Ct. at 2067, 80 L.Ed. 2d 696-97). In order to prove prejudice, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513-14 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 206-07 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

We first comment on the reliance on Rule 3:22-4 as a procedural bar to defendant PCR proceeding. Both defendant and the State agree that the Rule was not a bar. Even though defendant did not appeal, the issues raised here were not cognizable on the direct appeal as the "allegations and evidence [were] outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). More significantly, ineffective assistance of counsel claims should generally not be entertained on direct appeal, ibid.; State v Swint, 328 N.J. Super. 236, 262 (App. Div.), certif. denied, 165 N.J. 492 (2000), and are more suited for the PCR proceeding. There was no basis for a procedural dismissal of the PCR.

We deem the critical issue on this appeal to be whether defendant has set forth sufficient facts to warrant a hearing on his claim for relief. At this stage of the proceedings, we need not address nor resolve the merits but simply consider whether defendant has made the necessary prima facie showing of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64; State v. Cooper, 410 N.J. Super. 43, 56 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010); State v. Veney, 409 N.J. Super. 368, 377 (App. Div. 2009). In resolving this issue, we view the facts "in the light most favorable to defendant." State v. Marshall, 148 N.J. 89, 158 (1997); see, e.g., State v. Norman, 405 N.J. Super. 149, 162 (App. Div. 2009). Defendant's claims of ineffective assistance of counsel focus on two distinct issues. First, the failure to communicate as well as secure witnesses rendered McClure unprepared for trial, and second, his pending disciplinary issues rendered him ineffective. As to the second issue, the Court in Allegro, supra, declined to adopt a per se rule that an attorney's disciplinary problems, standing alone, demonstrate ineffective assistance of counsel. 193 N.J. at 369. It may be relevant, however, if the questioned conduct that was the subject of such proceedings is similar to the issues raised on the PCR. Id. at 372. Our review of the disciplinary proceedings submitted as part of the record leads us to conclude that such conduct meets that threshold requirement. We likewise conclude that on their face, the allegations of lack of contact as well as lack of preparation, viewed indulgently in favor of defendant, support a finding that counsel did not adequately prepare for defendant's case. See Wiggins v. Smith, 539 U.S. 510, 534-36, 123 S.Ct. 2527, 2542-43, 156 L.Ed. 2d 471, 493-94 (2003) (noting that when counsel failed to discover and present mitigating evidence, counsel was "not in a position to make a reasonable strategic choice" during sentencing). This finding satisfies the first prong of the Strickland test.

We reach a different result regarding the second prong. We restate the standard of the second prong. Defendant must demonstrate the reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Applying this test, we conclude that the defendant did not demonstrate the requisite prejudice that prompts application of the second test.

Defendant was charged in a multi-count indictment that included Graves Act offenses. While he argues that the State had agreed to abandon those charges, that occurred at the time of the plea agreement, and we are unable to discern from the record a prior commitment from the State that it was not moving forward on those charges. Moreover, the State produced the alleged victim, co-defendant Whilby, whose credibility might have been suspect, but whose statements would have been sufficient to submit the charges for a jury's consideration. The critical factor is that as to the eluding charge, defendant presents little to suggest that had he proceeded to trial for that offense alone, the result would have been different. He asserts that Officer Abraham's credibility was suspect given the officer's undefined departmental charges. Critically, however, Officer Abraham was only one of a number of police officers involved in the eluding incident who could testify, presumably without the infirmities burdening Abraham. While defendant's investigator also raised questions as to the route taken during the eluding incident, the facts and witnesses are present to submit the issue to the factfinder.

Finally, defendant alludes to a number of witnesses that were available. Aside from the submission of the investigator's hearsay report, no certifications or other supporting documentation were forthcoming to suggest what relevance these witnesses have to any of the charges, especially the eluding offense. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (holding that defendant must assert facts that an investigation would have revealed supported by certifications based on personal knowledge), certif. denied, 162 N.J. 199 (1999). Even if we were to consider the investigator's hearsay statements as to what interviewed witnesses might say, we note that none of the proffered witnesses address the eluding issue other than the investigator himself, and his commentary is limited to the route taken rather than the events that occurred. Defendant's difficulty was that he was exposed to very serious charges that would have been presented to the jury absent a plea agreement. Ultimately, the result achieved in the defense of these significant charges lodged against defendant was unusually favorable, resulting in a plea to a third-degree offense with a modest probationary sentence imposed. Cf. Allegro, supra, 193 N.J. at 371-72 (remanding to the Law Division to consider defendant's ineffective assistance of counsel claim, where defendant alleges that his attorney did not adequately prepare for plea cut-offs, misrepresented the impact of the plea cut-offs, and the attorney had been disbarred for substantially similar conduct; defendant argued that he would have accepted those plea offers, if not for counsel's alleged deficiency). Here, in contrast, defendant accepted the plea agreement, which resulted in the State dropping the more serious charges against defendant. Although defendant insists that the prosecution would not have moved forward on the other charges, we do not consider the various plea negotiations to be a definitive indicator of the State's ultimate decision if the plea negotiations had failed.

In sum, defendant has failed to demonstrate that he was prejudiced as a result of counsel's conduct.


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