December 6, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VICTOR CYRUS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0209.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2010 - Decided
Before Judges Rodriguez and Grall.
Appellant filed a pro se supplemental brief.
Defendant Victor Cyrus pled guilty and is serving an aggregate ten-year term of imprisonment for first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(1); second-degree distribution of CDS, N.J.S.A. 2C:35-5b(2); and second-degree possession of a firearm by a person convicted of a crime and not permitted to have a gun, N.J.S.A. 2C:39-7b, commonly known as a certain persons weapons offense.*fn1 In addition to the mandatory fees, fines, penalties and assessments, defendant is obligated to pay two penalties under the Anti-Drug Profiteering Act (ADPA), N.J.S.A. 2C:35A-1 to -8; those penalties are $200,000 for first-degree possession with intent to distribute and $100,000 for second-degree distribution. N.J.S.A. 2C:35A-4.
Defendant did not file a direct appeal and now appeals from a denial of post-conviction relief (PCR). He asserts that he did not receive effective assistance of counsel at his guilty plea, sentencing and PCR proceedings. Specifically, defendant argues that the outcome would have been different but for his attorneys' collective failure to: challenge the search that produced the only evidence supporting his convictions for first-degree possession with intent to distribute and the certain persons weapons offense; explain his exposure to ADPA penalties; and oppose imposition of two ADPA penalties rather than the one ADPA penalty contemplated by the plea agreement. Because PCR counsel did not comply with Rule 3:22-6(d), State v. Webster, 187 N.J. 254 (2006), and State v. Rue, 175 N.J. 1 (2002), we reverse and remand to allow defendant to file a new petition with effective assistance of counsel.
Between September 16, 2005 and February 23, 2006, defendant sold cocaine to an undercover officer on nine separate occasions; three of the sales involved a sufficient quantity to constitute a second-degree crime. On November 30, 2005, defendant had another person sell cocaine and bring him the money received. On May 1, 2006, defendant was arrested on an open warrant at his place of business, a deli. Although the officers did not have a search warrant or defendant's consent, with the assistance of trained dogs they found and seized a gun, which was under a couch, and enough cocaine to justify a charge of first-degree possession of CDS with intent to distribute.
To provide context for a discussion of defendant's objections to the assistance provided by his several attorneys, we discuss in detail the proceedings that led to his plea, sentence and denial of his PCR petition and subsequent motions for reconsideration.
The grand jurors for Monmouth County returned a forty-count indictment. They charged defendant with crimes involving possession and distribution of drugs and unlawful possession of weapons.
When defendant was indicted, he had a prior conviction for possession with intent to distribute. Consequently, if convicted of a crime involving distribution or possession of CDS with intent to distribute, he faced a mandatory extended term unless the prosecutor agreed to waive that sanction in accordance with the Brimage guidelines. See N.J.S.A. 2C:35-12; N.J.S.A. 2C:43-6f; N.J.S.A. 2C:43-7c; State v. Brimage, 153 N.J. 1 (1998).
Defendant retained private counsel, Paul W. Bergrin. Thereafter, the State offered a plea agreement promising to: waive the mandatory extended term; dismiss all but four counts of the indictment; recommend a ten-year sentence with a five-year period of parole ineligibility for first-degree possession with intent to distribute and concurrent sentences for the second-degree distribution of CDS and second-degree certain persons weapons offense. The State also gave notice of its intention to seek an ADPA "penalty" and acknowledged that Bergrin could oppose that penalty.
To establish its entitlement to an ADPA penalty, the State conditioned its plea offer on defendant's agreement to an amendment of the indictment that would consolidate nine counts alleging sales to the undercover officer.*fn2 See N.J.S.A. 2C:35-5c (authorizing aggregation of the amounts of CDS involved in separate transactions). During the colloquy at the plea hearing, the State linked its request for an ADPA penalty with defendant's admission to nine sales of CDS to the undercover officer.
Bergrin confirmed that the State's position on the ADPA penalty was consistent with his understanding of the ADPA and the plea agreement. He said he would submit a brief opposing the penalty with an argument based on defendant's inability to pay.
After reviewing the language of the ADPA with the attorneys, the trial court determined, and counsel agreed, that the minimum mandatory ADPA penalty for a second-degree crime is $100,000, which could be higher depending on the value of the drugs. N.J.S.A. 2C:35A-4a(1)-(2). Although defendant was pleading guilty to first-degree possession of CDS with intent to distribute and second-degree distribution, there was no discussion of a mandatory minimum $200,000 ADPA penalty for the first-degree crime, N.J.S.A. 2C:35A-4a(1).
Defendant acknowledged his understanding of the ADPA penalty discussed on the record, which was one penalty of $100,000 or more. The plea form defendant signed noted, "Prosecutor will be seeking an imposition of an [ADPA] penalty"; it did not refer to the amount of the penalty or specify the crime to which it would apply. Cf. Brimage Guidelines 2 (2004 Revisions) § 11.10 (providing that the ADPA penalty shall be part of the plea offer). The plea form also stated that the first-degree crime was subject to a fine in the maximum amount of $500,000, but that fine was not among the financial penalties discussed at the plea hearing.
Before accepting defendant's plea, the judge questioned defendant. In response, defendant testified that he: was satisfied with Bergrin's representation and aware that Bergrin was facing criminal charges of his own; had not been threatened or pressured to plead guilty; knew he was waiving his right to trial; knew he was eligible for an extended term; and was pleading guilty because he was actually guilty.
Prior to sentencing, the State, but not Bergrin, filed a brief addressing the ADPA penalty. At the sentencing hearing, defendant was represented by an attorney "standing in" for Bergrin. The assistant prosecutor argued that the ADPA required two penalties - one $100,000 penalty for second-degree distribution of CDS and one $200,000 penalty for first-degree possession of CDS with the intent to distribute.
Defendant's lawyer conceded that her client's allocution at the time of the plea warranted imposition of the penalties, but defendant interjected with an objection. He asserted that he understood he would receive a $100,000 ADPA penalty for the nine sales to the undercover officer but did not know he would receive a second penalty for first-degree possession with intent to distribute. He also contended the first-degree crime was based on drugs found during a search of his business at the time of his arrest that was conducted without his consent or a search warrant.
Interpreting the ADPA to require two penalties, the judge rejected defendant's arguments. Further noting absence of precedent interpreting the ADPA, the judge suggested defendant consider challenging the penalties on appeal.
The judgment of conviction was entered on August 10, 2007, but, as noted above, defendant did not file a direct appeal and lost the opportunity to obtain relief on the ground that the ADPA penalties are excessive. R. 3:22-4; State v Levine, 126 N.J. 565, 583 (1992).
On September 4, 2007, defendant filed a pro se PCR petition. He alleged that Bergrin was ineffective and he was pushed into taking the plea. Defendant sought discovery and requested the assistance of a public defender.*fn3 On September 7, 2007, the judge entered an order directing the Office of the Public Defender to appoint a PCR attorney and provide the attorney's name within ninety days.
For reasons not clear on this record, PCR counsel did not file an amended petition and supporting brief until May 12, 2008. In that brief, counsel argued that Bergrin's performance was constitutionally deficient for failure to file a motion to suppress and to properly advise defendant about the ADPA penalties. Counsel did not present any argument based on the terms of the plea agreement, the language of the ADPA or the facts pertinent to the search.
On July 11, 2008, the judge who accepted defendant's plea and imposed his sentence heard argument on the petition. PCR counsel complained of Bergrin's failure to challenge the search but did not present pertinent facts or legal argument addressing the illegality of the search. PCR counsel also argued that Bergrin failed to advise defendant that he was subject to an ADPA penalty in excess of $100,000, but PCR counsel did not present an argument supported with reference to the colloquy at the time of the plea.
The judge denied the petition. With respect to the motion to suppress, the judge determined that defendant failed to establish that Bergrin's performance was deficient because Bergrin's decision to forego a motion to suppress was tactical and because PCR counsel had not shown that the search was unlawful. With respect to the ADPA penalty, the judge found that even if defendant was not aware of the possibility of a $200,000 ADPA penalty for the first-degree crime, the plea form alerted defendant of the potential for a $500,000 fine. In the judge's view, because defendant pled guilty knowing he could be fined $500,000, he could not show he would have stood trial but for Bergrin's failure to tell him about a $200,000 penalty. The judge entered an order denying PCR on July 11, 2008.
On July 25, 2008, defendant filed a pro se motion for reconsideration relying on Rule 1:7-4(b) and asserting ineffective assistance by PCR counsel. In a supporting certification, defendant asserted, as he had at the time of sentencing, that the evidence supporting his convictions for first-degree possession and the certain persons weapons offense was obtained without a search warrant or his consent. He explained that he had been placed under arrest and had denied having any contraband, before the officers commenced the search. Defendant contended that his PCR counsel failed to argue those points, which would have demonstrated that Bergrin had a plausible basis for a motion to suppress. The trial judge dismissed defendant's motion for reconsideration because his attorney had not indicated whether he was representing defendant.
On February 20, 2009, the Office of the Public Defender filed a notice of appeal from the denial of PCR. On December 15, 2009, we granted defendant's motion and remanded with directions for the trial judge to decide defendant's application for reconsideration.
One day after the remand order was filed, designated counsel representing defendant in this court filed a brief on the merits of his PCR appeal.
The hearing on remand was conducted by a different trial judge on January 27, 2010. At that hearing, defendant was represented by an assistant deputy public defender who had not represented him in any prior proceeding. Defendant was not transported from prison for the hearing, and the public defender waived defendant's appearance.
The public defender argued that defendant was not advised of the possibility of two ADPA penalties. He also contended that if Bergrin had succeeded in suppressing the evidence seized from defendant's place of business, defendant could not have been convicted of first-degree possession with intent to distribute or the certain persons weapons offense. The public defender did not present facts or legal argument relevant to the lawfulness of the search or defendant's primary claim on his motion for reconsideration - that PCR counsel was ineffective.
Addressing the arguments presented by the public defender, the trial court considered performance of counsel at the time of plea and sentencing. He did not address PCR counsel's performance. Taking notice of a Brimage guideline that requires a less favorable offer from the State if a suppression motion is filed and argued, State v. Thomas, 392 N.J. Super. 169, 181-83 (App. Div.), certif. denied, 192 N.J. 597 (2007), the judge concluded that Bergrin's decision to forego a suppression motion was a tactical one falling within the wide range of constitutionally competent performance that is fatal to a claim of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 694 (1984). The judge also determined that defendant was not entitled to relief based on the $200,000 ADPA penalty for first-degree possession with intent to distribute. The judge reasoned that defendant, who was aware of the possibility of a $500,000 fine, could not show he would have gone to trial if he had known about the $200,000 ADPA penalty.
On February 5, 2010, defendant's appellate counsel advised the clerk of this court that she would not file a supplemental brief addressing the remand hearing.
On appeal defendant's counsel raises four issues:
I. IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.
II. THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
III. THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS POST-CONVICTION RELIEF HEARING.
IV. ALL POINTS RAISED BY DEFENDANT-APPELLANT IN ANY AND ALL PRIOR AND SUBSEQUENT SUBMISSIONS TO THE COURT ARE INCORPORATED BY REFERENCE INTO THIS BRIEF.
In a supplemental brief filed by defendant pro se, he argues:
I. THE STATE'S EIGHT MONTH DELAY IN EXECUTING AN ARREST WARRANT IN BRINGING [D]RUG CHARGES AGAINST DEFENDANT CONSTITUTED IMPERMISSIBLE SENTENCING FACTOR MANIPULATION IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUT[ION].
II. DEFENDANT'S MONETARY PENALTIES IMPOSED UNDER N.J.S.A. 2C:35A CONSTITUTES PUNISHMENT UNDER THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION.
III. DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW WHEN HE WAS DENIED THE RIGHT TO BE PRESENT AT THE HEARING FOR THE ANTI-DRUG PROFITEERING PENALTY PURSUANT TO N.J.S.A. 2C:35A-3.
IV. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS POST-CONVICTION PROCEEDING.
We focus on the assistance provided by defendant's PCR counsel and the public defender who represented him on remand. Since defendant's sentencing hearing on August 10, 2007, he has attempted to present a claim of ineffective assistance based on Bergrin's failure to file a motion to suppress and failure of attorney who stood in for Bergrin at sentencing to argue that the imposition of two ADPA penalties violated his expectations under the plea agreement. Nonetheless, neither PCR counsel nor the public defender assigned on remand has presented any argument based on the facts and law relevant to the merits of defendant's suppression claim or the discussion about the ADPA penalties at the time of defendant's plea and sentencing.
Those arguments are critical to defendant's claim for relief based on ineffective assistance of counsel. Without them defendant cannot establish deficient performance by his prior counsel or resulting prejudice, and both must be shown to obtain relief based on ineffective assistance of counsel. See State v. Jack, 144 N.J. 240, 249 (1996).
More was required of PCR counsel and the public defender. In PCR proceedings, the "attorney is responsible to communicate with his client and investigate the claims. Based on that communication and investigation, counsel then must fashion the most effective arguments possible." Rue, supra, 175 N.J. at 18 (internal quotations and citations omitted). Rule 3:22-6(d) requires counsel to "advance all of the legitimate arguments requested by defendant that the record will support."
Defendant raised arguments about the performance of his attorneys at his plea, sentencing and PCR hearings. There was support for his claims available in the record - specifically, in the transcripts of the proceedings, the brief submitted by PCR counsel and defendant's certification. Collectively, the attorneys in the post-conviction proceedings failed to present those claims to the court.
We recognize that two trial judges resolved the claim based on the suppression motion by concluding that Bergrin's decision to forego a motion to suppress was a tactical one driven by the Brimage guideline that calls for the State to offer a less favorable agreement to a defendant who files and pursues a motion to suppress. That may be, but on the facts of this case a successful motion to suppress would have deprived the State of all leverage attributable to the first-degree charge of possession with intent to distribute and the second-degree charge of a certain persons weapons offense. In this circumstance, the fact that the decision was tactical does not end the inquiry.
There are tactical decisions of counsel that are "virtually unchallengeable," but those tactical decisions are limited to "strategic choices made after thorough investigation of law and facts relevant to plausible options." State v. Davis, 116 N.J. 341, 357 (1989) (internal quotations omitted). A decision to forego a motion to suppress because of a Brimage guideline is not an unassailable tactical decision if it is made without an analysis of the facts pertinent to the search and without weighing the positive effect of dismissal of charges against the negative effect of a Brimage guideline designed to encourage early entry of a guilty plea. Those questions, due to the performance of PCR counsel and the public defender, were not addressed.
The possibility that Bergrin made a tactical decision did not absolve the attorneys representing defendant post-conviction of their respective obligations to advance defendant's arguments. They should have inquired of defendant, developed the facts relevant to the search and presented available legal arguments.
Similarly, both attorneys failed to present an argument grounded in the record to advance defendant's objections to the legal assistance he received in connection with the ADPA penalties. It is clear from the transcript of the sentencing proceeding that defendant's attorney presented no argument at all, but PCR counsel did not make that point. PCR counsel noted that Bergrin was ineffective because he did not advise defendant of the possibility of two ADPA penalties or file a brief, but PCR counsel did not argue, as defendant implied at the sentencing hearing, that the State's request for two ADPA penalties violated the plea agreement as explained on the record and defeated defendant's reasonable expectations. See State v. Warren, 115 N.J. 433, 445-46 (1989) (discussing principles of due process limiting a prosecutor's ability to withdraw from a plea agreement articulated in Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427, 433 (1971)).
For the foregoing reasons, we conclude that defendant did not receive effective assistance of counsel at his PCR hearing or on his subsequent motions for amplification of decision denying PCR. Defendant is entitled to file a new petition with the assistance of counsel who has communicated with him, investigated his claims and fashioned a sound legal argument. Webster, supra, 187 N.J. at 257 (quoting Rue, supra, 175 N.J. at 18).*fn4 Accordingly, we remand for further proceedings. Nothing in this opinion should be understood to suggest we have decided that an evidentiary hearing is required; that determination must abide the filing and review of an adequate petition.
To narrow the issues on remand, we have considered and rejected the arguments presented in Points I, II and III of defendant's pro se brief on appeal. Those arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). It suffices to note that the ADPA authorizes imposition of penalties based on findings made at the sentencing hearing, N.J.S.A. 2C:35A-3a; these penalties were imposed at sentencing in defendant's presence and on the basis of his criminal convictions. See ibid. Defendant has provided nothing that suggests the entry of the civil judgment was anything other than a ministerial act memorializing and enforcing ADPA penalties that had been imposed as part of the sentence for these crimes.
Reversed and remanded for further proceedings in conformity with this decision. We do not retain jurisdiction.