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State v. Brooks


October 27, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-04-0799.

Per curiam.


Submitted October 4, 2010

Before Judges Rodríguez and LeWinn.

Defendant appeals from the July 1, 2009 order of the Law Division denying his petition for post-conviction relief (PCR).

Because we are satisfied that the PCR judge properly denied defendant's petition without affording him a plenary hearing, we affirm.

In April 2005, defendant was charged in an eleven-count indictment with vehicular homicide, aggravated assault, assault by auto, and causing death and serious bodily injury while driving with a suspended driver's license. On October 12, 2005, pursuant to a negotiated plea agreement, defendant pled guilty to second-degree vehicular homicide, N.J.S.A. 2C:11-5, and three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Because of his prior record, defendant was eligible for a discretionary extended sentence pursuant to N.J.S.A. 2C:44-3(a). The State recommended a maximum term of eighteen years on the vehicular homicide count and concurrent seven-year terms on the aggravated assault counts.

In his factual basis for the plea, defendant stated that on the date in question, he was driving a vehicle in Matawan while he was intoxicated. Defendant had one passenger in his car. He lost control of his vehicle, swerved into the lane of oncoming traffic and collided head-on with a taxicab, which contained two passengers. The cab driver was killed, and all three passengers were seriously injured.

On November 30, 2005, defendant's attorney wrote to the judge stating that "[i]mmediately after his guilty plea was entered, [defendant] wrote to [him] . . . stating that he desired to retract his guilty plea and proceed to trial[,]" and that counsel had filed a motion seeking that relief. Counsel went on to advise the judge that, based on correspondence he had received from defendant, he considered "it impossible for [him] to continue to represent [defendant]." Specifically, counsel paraphrased the contents of three postcards defendant had sent to him, in which defendant accused counsel of "providing false advi[c]e in order to induce him to plead guilty as part of an agreement" with the prosecutor, and stated that he was going to "report[]" counsel "to prevent [his] misleading other clients[,]" in language that counsel characterized as "vulgar and offensive[]."

On February 3, 2006, the judge granted defendant's motion to withdraw his guilty plea. The judge instructed defense counsel to file a motion to withdraw and ordered that the matter be set down "for a status conference on the return date of [counsel's] motion to withdraw."

The judge noted that defendant had "filed a pro se motion for reduction of bail," but concluded that "since counsel did not join in that, it's nonconforming and so . . . it's going to be denied or dismissed." The judge further stated that if she "let [defense counsel] out of the case," she would afford defendant the opportunity to obtain new counsel and "give him or her a chance to get familiar with the case and . . . set it down for trial."

Defendant then advised the court that he did not wish to proceed to trial, and that he wished to withdraw his motion to vacate his guilty plea. The prosecutor stated that the previous plea was "no longer on the table[,]" and that defendant would have to "plead open ended."

The judge advised defendant that, once his attorney filed his motion to withdraw, she would "see what happens" and defendant could consult with a new attorney and decide how to proceed. Defendant asked about a bail reduction and the judge informed him that he was represented by counsel who was going to ask to withdraw and a bail motion would have to await the appearance of new counsel on defendant's behalf.

It appears counsel never filed a motion to withdraw because, on May 22, 2006, defendant appeared in court with the same attorney and entered an open ended plea to the indictment. The prosecutor then proceeded to recite the State's proofs on each count of the indictment, which included the following: (1) defendant's blood alcohol content was 0.142 at the time of the incident; (2) defendant's car crossed the center lane and hit a taxi cab, killing the driver; one passenger required open heart surgery; another was treated for fractures of his nose, arm and ribs; and the third "suffered serious bodily injury." The prosecutor further placed on the record that defendant's car crossed over a bridge, "rode the guardrail for [forty-five] feet" and collided with the cab with such force that "[b]oth cars were totaled." The prosecutor also introduced an abstract of defendant's driving record showing that his license was suspended on the date in question.

The judge asked defense counsel if he concurred with the prosecutor's rendition of the facts. Counsel stated that he did and the judge proceeded to voir dire defendant as to the knowing and voluntary nature of his plea. Defendant acknowledged that his attorney had visited him in jail and talked to him in court, reviewed the plea form with him and answered his questions, and that he was satisfied with counsel's services.

Counsel then questioned defendant as to the factual basis for his plea; in his responses, defendant acknowledged that one victim had died and the three passengers had sustained serious bodily injuries. Defendant stated that he had no recollection of anything that occurred after his car hit the guardrail on the bridge; therefore, he could not "dispute" the State's evidence.

In accepting the plea, the following colloquy occurred between the judge and defendant:

THE COURT: . . . You are aware even though you didn't remember it, that there was one person who was the taxi driver who was killed and there were three passengers, one in your car and two in the taxi cab who had serious bodily injury, correct? You remember that?

THE DEFENDANT: Yes, what I remember now, yes.

THE COURT: You are aware because you received the discovery [of] the degree of the injuries received by each of these?

THE DEFENDANT: I never got the discovery, never got a chance to read my discovery.

THE COURT: You had plenty of time to do it, you understand that?


THE COURT: You have gone over this before. Your attorney has gone over that. There is no reason not to believe that these are injured people.


[THE COURT]: You agree with that?


Defendant then made another request for bail. The judge stated that since he had pled guilty and was facing "an extensive amount of time" the "answer at this point [was] no."

The judge added that counsel could file a formal motion but it would be heard at the time of sentencing.

Sentencing was held on June 16, 2006. Defendant appeared with the same attorney. The State moved for imposition of an extended sentence, and counsel presented a lengthy argument in opposition, describing programs defendant had attended to address his addiction issues and pointing out that defendant's prior record contained no crimes of violence.

The judge denied the State's motion, concluding that since defendant had pled to the indictment, there was ample opportunity to impose a substantial sentence, noting that there was "no need" to "resort to [an] extended term in order for there to be a just sentence in this matter."

Defense counsel then presented an extensive argument as to the aggravating and mitigating factors applicable to defendant and urged the judge to find five mitigating factors: number two ("defendant did not contemplate that his conduct would cause or threaten serious harm"); number eight ("defendant's conduct was the result of circumstances unlikely to recur"); number nine (defendant's "character and attitude . . . indicate that he is unlikely to commit another offense"); number ten ("defendant is particularly likely to respond affirmatively to probationary treatment"); and number twelve (defendant's "willingness . . . to cooperate with law enforcement authorities"). N.J.S.A. 2C:44-1(b)2, 8, 9, 10, 12.

Counsel requested that the judge impose an aggregate term of seven years. The prosecutor then spoke about defendant's record and the nature of the offense. Defense counsel corrected some of the prosecutor's misstatements about defendant's prior record and protested her speculation as to the trauma the victims continued to suffer, as no such evidence had been presented to the judge.

The judge sentenced defendant to a term of ten years on the vehicular homicide charge and three eight-year terms on the aggravated assault charges; the eight-year terms are concurrent to each other and consecutive to the sentence on vehicular homicide. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), defendant must serve eighty-five percent of his sentence before he will be eligible for parole. The judge also ordered defendant to pay $9,670.75 in restitution to one of the victims for outstanding medical bills.

Defendant appealed his sentence only, pursuant to Rule 2:9-11. On September 27, 2007, we affirmed his sentence but remanded for a plenary hearing on defendant's ability to pay the restitution. On November 15, 2007, the judge entered an amended judgment of conviction vacating the restitution obligation. The Supreme Court denied defendant's petition for certification. State v. Brooks, 193 N.J. 586 (2008).

On or about April 7, 2008, defendant filed his PCR petition, claiming "ineffectiveness of counsel," "excessive . . . sentence," "mental state of mind," "no discovery," and "lack of education." Counsel was assigned and filed a brief and appendix, claiming ineffective assistance of trial counsel for (1) "fail[ing] to assist and join in [defendant's] [m]otion for [b]ail [r]eduction due to his manifest disinterest in continuing to represent [defendant]"; (2) remaining "virtually silent during the [judge's] discourse with the State regarding restitution"; (3) failing "to apparently read the entire discovery and provide [defendant] with complete discovery to ascertain the basis for his plea and evaluate the extent of the alleged victims' injuries as being serious"; (4) failing to object to the prosecutor's statements at sentencing that defendant "elected to get into his car and to kill one people [sic] and seriously injure another[,]" and referring to defendant "as a hardened criminal when he had been convicted of no violent crime"; and (5) "fail[ing] to object to running the sentences of vehicular homicide consecutively with the three concurrent counts of aggravated assault."

Defendant filed a supplemental brief contending that the trial judge improperly instructed him as to the penal consequences of his plea, and erred by applying "aggravating factors that are already merged into the statute." Defendant claimed that "misinterpretation of the plea makes [the] sentence arbitrary and capricious and should be withdrawn."

After hearing oral argument on defendant's petition on May 20, 2009, the PCR judge issued a lengthy written decision on July 1, 2009, denying relief without a plenary hearing.

On appeal, defendant presents the following arguments for our consideration:

The [c]court should reverse the denial of defendant's petition for post-conviction relief and remand this matter for an evidentiary hearing on defendant's claims.

1. Defendant's petition is not barred.

2. Defendant established at least a prima facie case of ineffective assistance of counsel.

3. At the very least, the trial court erred in rejecting defendant's ineffective assistance claims without conducting an evidentiary hearing.

Defendant has filed a pro se supplemental brief raising essentially the same arguments.

Having considered these contentions in light of the record and the controlling legal principles, we are convinced they are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in the written decision of Judge Ronald Lee Reisner. We add only the following comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S.Ct. at 369, 88 L.Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210.

Here, defendant clearly expressed his desire not to go to trial. His principal concern was that the sentence recommended by the State in the original plea offer was too high. The trial judge granted defendant's motion to withdraw his plea; defendant then "withdrew" that motion and, following colloquy with the judge, understood that he would have to plead open ended to the indictment and the judge would determine the appropriate sentence.

The trial judge also adjourned the matter on February 3, 2006, to allow defendant's attorney the opportunity to file a motion to withdraw as counsel and to abide further proceedings pending the appearance of new counsel on defendant's behalf. When defendant next appeared before the judge, to plead to the indictment, he was still represented by the same attorney and raised no complaints or objections about that attorney's continued representation of him.

The only claims the PCR judge deemed procedurally barred by Rule 3:22-5*fn1 were those relating to defendant's sentence.

Clearly, defendant's allegations that the trial judge "double counted" aggravating factors and that trial counsel was ineffective for not speaking out against restitution, were addressed in his direct appeal pursuant to Rule 2:9-11. As noted, the restitution order was vacated as a result of that appeal. Defendant's other sentencing claim, that his attorney did not object to consecutive sentences is not only barred for having been considered in his sentencing appeal, but also flies in the face of the record. At sentencing, defense counsel specifically asked the judge "to impose the presumptive seven years and run all subsequent counts concurrent. . . . [T]hat serves the needs of society in resolving this case."

The PCR judge addressed the merits of defendant's ineffective assistance claims. Regarding the bail reduction issue, the judge found that defendant failed to demonstrate a reasonable probability that, had counsel made such a motion, it would have been granted and defendant would have been able to post the bail set; moreover, defendant failed to show how the result in his case would have been different had he been admitted to bail.

Regarding the discovery issue, not only did defendant acknowledge at his second plea that the State's proofs established the death of one victim and the serious bodily injuries of the other three, he failed to make any showing in his PCR petition that the discovery would have proven otherwise.

Defendant's claim that counsel failed to object to the prosecutor's mischaracterization of his prior record is also belied by the record. As the PCR judge noted, counsel specifically told the judge at sentencing that the prosecutor erred in referring to convictions in 1991 and 1992 because those charges had been dismissed.

The judge then addressed defendant's claim that counsel had been ineffective because of the attorney-client communications he had revealed to the trial judge in his letter of November 30, 2005. Defendant claimed that as a result of that letter, the judge imposed a higher sentence than otherwise would have been imposed. AS the PCR judge noted, however, defendant failed to provide any proof of a nexus between the contents of his attorney's letter and the sentence he received. To the contrary, the record reflects the sentencing judge's well-founded reasons supporting the sentence imposed; in any event, the quantum of defendant's sentence was previously affirmed on appeal.

Defendant's claim of ineffective assistance of appellate counsel is baseless and warrants no discussion in the opinion. R. 2:11-3(e)(2). As the PCR judge found, appellate counsel "sufficiently apprised" the reviewing panel "of the accurate facts and circumstances of the case."

Having thus failed to establish a prima facie case of ineffective assistance of counsel, defendant was not entitled to a plenary hearing. State v. Preciose. 129 N.J. 451, 462 (1992).


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