January 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDREW DENNIS, DEFENDANT-APPELLANT.
On appeal before the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2041.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 30, 2010
Before Judges Parrillo and Espinosa.
Defendant, Andrew Dennis, appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).
For the following reasons, we reverse and remand for an evidentiary hearing.
Defendant and two co-defendants were indicted for multiple counts each of first-degree robbery, N.J.S.A. 2C:15-1; aggravated assault, N.J.S.A. 2C:12-1b(1), (3) and (4); second-degree armed burglary, N.J.S.A. 2C:18-2; weapons offenses, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:39-5b; conspiracy, N.J.S.A. 2C:5-2; and one count of third-degree criminal restraint, N.J.S.A. 2C:13-2. These charges stemmed from an armed robbery and shooting of a drug dealer on August 4, 2000 in Atlantic City.
At his arraignment on November 15, 2000, defendant was presented with the State's initial plea offer pursuant to Rule 3:9-1(b). The offer provided for defendant to serve ten years in prison with an 85% period of parole ineligibility, and was neither conditioned on defendant providing testimony against his co-defendants nor on them entering guilty pleas together. The offer was not accepted at that time. Over the next four months, defendant appeared for four status conferences, the first and last before the same pre-trial judge. At the final pre-trial conference, on February 7, 2001, the State extended another plea offer for defendant to serve ten years in prison with an 85% period of parole ineligibility in exchange for a guilty plea and defendant's truthful testimony against his co-defendants at trial. Defendant rejected this plea offer as well.
Following a joint jury trial, defendant and his co-conspirators were convicted of all charges save one count of armed robbery, which the court dismissed sua sponte during trial. Co-defendants, who were not extended term eligible, were each sentenced to an aggregate term of thirty years imprisonment with a 25.5 year period of parole ineligibility. In sentencing defendant, the court granted the State's motion for a discretionary extended term as a persistent offender, N.J.S.A. 2C:43-7, and imposed upon him an aggregate sixty-year term of imprisonment with a fifty-one year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed defendant's judgment of conviction. State v. Dennis, No. A-424-01T4 (App. Div. June 29, 2004). The Supreme Court granted defendant's petition for certification, State v. Dennis, 182 N.J. 428 (2005), and later affirmed his judgment of conviction, State v. Dennis, 185 N.J. 300 (2005).
Thereafter, defendant filed a timely PCR petition and motion to correct an illegal sentence.*fn1 In support of his PCR petition, defendant submitted a certification of his trial counsel who attested that:
[I]t is more likely th[a]n not that I failed to advise the defendant that he was subject to a term of incarceration of 60 years in which he must serve 85% before becoming eligible for parole. It is likely that I advised the defendant that he was subject to a term of incarceration of 20 years in which he must serve 85% of such term before being eligible for parole. I believe this is so since at sentencing I remember being surprised that the defendant received a term of 60 years in which he must serve 85% before becoming eligible for parole.
Defendant also submitted his own certification in which he attested that trial counsel advised him "that the most I would receive if I lost at trial was 20 with an 85%[,]" and that had he been aware of his exposure to an extended term or consecutive sentences, he would have taken "the plea of ten years without a doubt whatsoever."
The PCR court denied defendant's petition, including his request for an evidentiary hearing.*fn2 Defendant appealed and moved to enlarge the record on appeal to include transcripts from the four pre-trial conferences that defendant attended. We denied the motion and remanded to permit defendant to submit the additional materials to the PCR court. State v. Dennis, A-3934-07T4 (App. Div. Mar. 9, 2009).
At the September 4, 2009 remand hearing, defendant reiterated that:
Had I known that I could have been sentenced to an aggregate term of incarceration of either sixty years in which I must serve 85% or forty and one-half years prior to being eligible for parole, I would have accepted a plea offer [of] ten years in which I must serve 85% of such term(s) before becoming eligible for parole and would have testified against my co-defendants to receive such an offer.
In addition, transcripts of the status conferences disclosed that defendant was never advised on the record of his sentencing exposure, although at one point during the February 7, 2001 conference, the prosecutor, in colloquy with the court, briefly referred to defendant as being "extended term eligible."
At the conclusion of argument, the judge once again denied defendant's PCR petition and request for an evidentiary hearing. Despite defendant's unrebutted proofs, the judge found that defense counsel must have properly advised defendant of his sentence exposure, declaring, "no sane lawyer, no lawyer with her experience, would have said that [defendant's] exposure was 20, serve 85[,]" and surmising that counsel's certification was obtained without benefit of her first reviewing defendant's sixteen-count indictment. And despite not taking any testimony, the PCR judge completely discredited defendant's certification as well, asserting: "To be honest, I don't believe your client . . . [he] has no credibility at all." In any event, the court found that defendant was on notice that he was extended term eligible by the prosecutor's brief reference at the February 7, 2001 pre-trial conference. But even if defendant were not so advised and counsel's assistance were constitutionally deficient, the judge alternatively found no prejudice to defendant since a plea of ten years with 85% parole ineligibility would not have been accepted by the court.
On appeal, defendant argues that the court erred in denying his PCR petition because the record established a prima facie case of ineffective assistance of counsel during plea negotiations sufficient to warrant an evidentiary hearing. The State counters that, even if defendant were misadvised of his sentence exposure, "there is no reasonable probability that a guilty plea by defendant would have been accepted under [the] proposed plea agreement disclosed to the lower court," and therefore defendant was not prejudiced by his counsel's claimed deficiency.
It is virtually axiomatic that, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair disposition of the charges. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
"It is also clear that plea bargaining is a critical stage of the criminal proceeding at which the right of representation attaches." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002), rev'd after remand, 200 N.J. 183 (2009); see also State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996); United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). During this stage, "a defendant has the right to make a reasonably informed decision whether to accept a plea offer" and knowledge of potential sentence exposure is crucial to the decision of whether to plead guilty. Day supra, 969 F.2d at 43; see also State v. Nichols, 71 N.J. 358, 361 (1976). Therefore, counsel's effective assistance at the plea bargain stage, as well as counsel's understanding of the sentencing consequences, is of paramount importance. See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S. Ct. 316, 322, 92 L. Ed. 309, 319 (1948) ("Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.").
Our own court rules reflect the importance of informed plea bargaining, requiring that a defendant be advised at the pretrial conference of the sentencing exposure for the offenses charged. See Pressler and Verniero, Current N.J. Court Rules, comment 1.4.2. on R. 3:9-2 (2011) ("The defendant must be advised of the maximum penalty for the crime to which he is pleading guilty[;]" "[T]he defendant must also understand both discretionary and mandatory parole ineligibility terms that may be imposed[;]" "The defendant must be advised of his susceptibility to an enhanced sentence . . . [and] the possibility of consecutive sentencing."). See also State v. Thomsen, 316 N.J. Super. 207, 214 (App. Div. 1998) (noting that "every person is entitled to know, with reasonable exactitude, the penal consequences of any criminal charge he or she is called upon to defend against").
We have previously addressed the role of counsel in plea bargaining in Taccetta. There, the defendant asserted that his trial attorney failed to advise him of the enhanced sentence exposure he would face on racketeering and extortion charges (of which he was ultimately convicted by a jury) in the event he were acquitted of murder charges. 351 N.J. Super. at 199. Relying on counsel's misadvice, the defendant rejected the plea agreement he otherwise would likely have accepted. Ibid. We reversed the court's denial of PCR without an evidentiary hearing, holding that "an attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance" that falls below an objective standard of reasonableness, satisfying the first prong of Strickland/Fritz. Id. at 200 (emphasis added). As to the second prong, in subsequent developments in Taccetta's case history, the Supreme Court held that the defendant was unable to establish prejudice as a matter of law because accepting the plea would have required the defendant to perjure himself and the court could not be complicit in such a plan. Id. at 195-96 ("Court-sanctioned perjury is not a permissible basis for the entry of a plea in this State.")
Where a defendant has presented a prima facie claim of ineffective assistance of counsel and the asserted facts in support thereof are outside the record, an evidentiary hearing is required. State v. Preciose, 129 N.J. 451, 462 (1992). We are satisfied that an adequate prima facie showing was made to mandate an evidentiary hearing in order to afford defendant the opportunity to demonstrate to the PCR court that a favorable plea offer was made, that the advice his counsel gave him respecting his sentencing exposure upon conviction at trial was seriously deficient in that there was a substantial disparity between the advice and the actual exposure, and that defendant would and could have entered a guilty plea in accordance with the plea offer had he been correctly advised.
Contrary to the PCR court's holding, we do not find that the prosecutor's mere utterance at the last pre-trial conference of defendant's extended term eligibility either placed defendant on notice of his actual sentence exposure or remediated any failure on counsel's part to so advise. See, e.g., State v. Jamgochian, 363 N.J. Super. 220, 227 (App. Div. 2003). Any such omission, if proven at an evidentiary hearing, would in our view constitute constitutionally deficient performance.
As to the prejudice prong, we do not view the record, as the PCR judge did, as unequivocally establishing that the State's plea offer would never have been accepted by the court. On the contrary, the pre-trial conference judge never explicitly rejected the plea agreement, which had yet to be reached. Rather, the judge's intimation at the final pre-trial conference was anticipatory, hypothetical and, at most, ambiguous, as evidenced by the following colloquy among the court and counsel:
THE COURT: Who made the recommendation of ten years -- is this recommendation made by the Prosecutor?
[DEFENSE COUNSEL]: Yes, sir.
[THE PROSECUTOR]: Judge, I was offering Mr. Dennis that in return for testimony at trial, but he chooses not to cooperate with the State. Allegedly, Judge, he was not the shooter in this case. The two other Defendants were allegedly shooters, both shot the victim. Based on that, I thought I'd offer Mr. Dennis an opportunity to testify in return for leniency.
THE COURT: Why I ask that question, Mr. Dennis, I would have considered it if there was a recommendation of the Prosecutor for truthful testimony. However, I hear it's an armed robbery in a shooting. I would reject that offhand. Ten years is not what I consider a proper sentence even with the eighty-five percent No Early Release Act.
[THE PROSECUTOR]: Judge, since -- may I just tell your Honor that Mr. Dennis has -- well, I'm stopping at six. At least six prior indictable convictions. So he's extended term eligible.
THE COURT: Okay. That's why I would not even consider the ten year sentence, five year period of parole ineligibility.
To interpret these comments, as did the PCR court, as an outright rejection of a plea offer that was never actually placed before the pre-trial judge is purely speculative and unworthy of any weight or deference.
In any event, the measure of prejudice is not whether defendant could prove how a particular judge would have acted under particular circumstances, Mask v. McGinnis, 233 F.3d 132, 142 (2d Cir. 2000), cert. denied, 534 U.S. 943, 122 S. Ct. 322, 151 L. Ed. 2d 240 (2001); Turner v. Tennessee, 858 F.2d 1201, 1207 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902, 109 S. Ct. 3208, 106 L. Ed. 2d 559 (1989), but rather "whether defendant would or could have entered a guilty plea to the purported plea offer if correctly advised concerning the sentencing consequences." Taccetta, supra, 200 N.J. at 193-94 (emphasis in original). Indeed, in order to succeed on an ineffective assistance claim, the defendant must prove that there is a "reasonable probability" that, but for his counsel's deficient performance, "the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. The test requires neither speculation nor a subjective evaluation, but rather a determination as to whether the proposed plea agreement, acceptable to defendant if accurately advised, was objectively fair and reasonable under all the circumstances extant at the time and, if not, whether a different plea agreement that so qualifies would have been struck between the State and defendant. On this score, we note, as does defendant, that a ten-year term is within the sentencing range for a first-degree offense, as defendant would have been pleading guilty to the most serious crime in the indictment. Moreover, there was a basis for treating defendant more leniently than his co-defendants, as the prosecutor acknowledged on the record at the February 7, 2001 pre-trial conference. Because defendant has made a prima facie claim with respect to both the performance and prejudice prongs of the Strickland/Fritz test, we accordingly remand to the trial court to conduct an evidentiary hearing.
On remand, the matter should be assigned to a judge other than the PCR judge who denied defendant's petition. Throughout oral argument, the judge expressly commented on the lack of credibility not only of defendant, but his proofs as well. The strength of these opinions alone demonstrates the judge's commitment to these findings so that it would be best that the matter be examined anew by a different judge. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986); State v. Henderson, 397 N.J. Super. 398, 416, 417 n.10 (App. Div.), certif. denied, 195 N.J. 521 (2008).
Reversed and remanded for further proceedings consistent with this opinion.