January 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STIRLING M. CRUMBLIN, A/K/A ADUHL WAHID UBAIDAH IBN. CRUMBLIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 99-10-1282, 00-10-1260, 00-09-1187, 00-08-0983, 01-02-0158, 00-08-1029, and Essex County, Indictment No. 00-04-1104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010 - Decided Before Judges Lisa and Alvarez.
Defendant appeals from the February 19, 2008 order denying his post-conviction relief (PCR) petition. The petition arose out of an aggregate sentence of forty years imprisonment with a sixteen-year parole disqualifier that was imposed on May 24, 2001 on multiple charges contained in seven separate indictments to which defendant had pled guilty. The guilty plea was entered pursuant to a negotiated plea agreement, and the base term of the sentence imposed was lower than that recommended in the plea agreement. Further, pursuant to the terms of the plea agreement, five additional indictments and various other pending complaints were dismissed. For the reasons that follow we affirm.
On direct appeal, defendant raised the following issues:
THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION TO SUPPRESS.
POINT II THE SENTENCE WAS EXCESSIVE.
The suppression motion pertained to only two of the indictments to which defendant had pled guilty, for offenses occurring on a single date. We rejected appellant's arguments and affirmed his convictions and overall sentence. State v. Crumblin, No. A-0310-01 (App. Div. March 25, 2004).*fn1 The Supreme Court denied defendant's petition for certification. State v. Crumblin, 180 N.J. 454 (2004).
Defendant then filed his PCR petition. Counsel was assigned and filed a brief raising the following arguments:
COUNSEL IMPROPERLY ADVISED THE DEFENDANT AS TO THE DEGREE OF THE OFFENSES.
POINT 2 DEFENDANT WAS FACING A MANDATORY EXTENDED TERM AND NOT PERSISTENT OFFENDER SENTENCING. POINT 3 COUNSEL FAILED TO ARGUE THAT THE COURT HAD THE DISCRETION TO IMPOSE A MANDATORY MINIMUM TERM OF LESS THAN 16 YEARS.
POINT 4 THE PLEA OFFER WAS MISCALCULATED.
POINT 5 DEFENSE COUNSEL FAILED TO ADVISE DEFENDANT THAT BY WITHDRAWING HIS MOTION TO VACATE THE GUILTY PLEA, DEFENDANT WAIVED MOST ISSUES HE WANTED TO PRESERVE FOR APPEAL.
POINT 6 DEFENDANTS PLEA TO IND. NO. 00-08-0983 WAS COERCED INVOLUNTARY AND BASED UPON AN UNTRUE FACTUAL BASIS.
POINT 7 BOTH TRIAL AND APPELLATE COUNSEL FAILED TO RAISE IMPORTANT ISSUES REGARDING THE MOTION TO SUPPRESS EVIDENCE.
BASED UPON COUNSEL'S SUPPLEMENTAL BRIEF AND PETITIONER'S PRO SE PETITION, THE COURT SHOULD GRANT PETITION BASED UPON CUMULATIVE ERROR.
PCR counsel then filed a supplemental brief raising the following additional arguments:
COUNSEL WAS INEFFECTIVE AS HE FAILED TO CHALLENGE THE IMPOSITION OF A MANDATORY EXTENDED TERM FOR SECOND TIME OFFENDERS AS THE FACT OF HIS PRIOR CONVICTION WAS AN ELEMENT OF THE OFFENSE WHICH REQUIRED A SENTENCE GREATER THAN THAT OF A FIRST OFFENDER.
POINT II COUNSEL WAS INEFFECTIVE AS HE FAILED TO CHALLENGE THE INDICTMENT WHICH DID NOT ALLEGE AGGRAVATING FACTORS.
Although Judge Bozonelis had taken defendant's plea and sentenced him, Judge Ahto presided over the PCR proceedings. After conferencing the PCR matter on the record, Judge Ahto scheduled an evidentiary hearing, which he conducted over several dates. The judge received the testimony of defendant and the trial counsel who had represented him at the time of his plea and sentencing. The assistant county prosecutor who had represented the State through the plea and sentencing also testified. Defendant also presented the testimony of Janet Erdmann, who he contended was a potentially exculpatory witness with respect to one of the indictments to which he pled guilty. Defendant contended that he furnished his trial counsel with Erdmann's name and whereabouts, as well as the favorable information she was prepared to provide, but his trial counsel failed to contact her.
On February 14, 2008, Judge Ahto issued a comprehensive oral decision. He found the testimony of defendant and Erdmann incredible. He credited the testimony of defendant's trial counsel and the assistant prosecutor. The judge concluded that on some points raised by defendant there was no deficient attorney conduct. On others, he found that the asserted deficiencies were corrected in the course of the trial court proceedings and were of no consequence. Finally, although the judge found that some conduct by trial counsel may have been deficient, he further found that defendant failed to demonstrate that the outcome of the proceedings would have been any different. Accordingly, the judge denied defendant's PCR petition.
On appeal, defendant now argues:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE TRIAL COUNSEL'S INADEQUATE PRETRIAL INVESTIGATION CONCERNING MS. ERDMANN'S EXCULPATORY EVIDENCE; TRIAL COUNSEL'S BELIEF THAT THE TRIAL COURT HAD "NO DISCRETION" BUT TO IMPOSE THE PERIOD OF PAROLE INELIGIBILITY THAT WAS AUTHORIZED BY THE PLEA AGREEMENT AND HIS FAILURE TO ARGUE THAT A LESSER PERIOD OF PAROLE INELIGIBILITY SHOULD BE IMPOSED; AND TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT THAT HE WAS WAIVING ALL APPELLATE ISSUES EXCEPT THE SUPPRESSION MOTION RULING; RESULTED IN A DEFICIENT PERFORMANCE AND THE CONSEQUENT PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE APPELLATE COUNSEL'S FAILURE TO ARGUE THAT THE SEARCH AND SEIZURE WAS ILLEGAL UNDER STATE V. PIERCE, 136 N.J. 184 (1994), RESULTED IN A DEFICIENT APPEAL AND THE CONSEQUENT PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/MORRISON TEST FOR INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A) TRIAL COUNSEL MISCALCULATED THE PLEA OFFER.
(B) DEFENDANT'S PLEA TO MORRIS COUNTY INDICTMENT NO. 00-08-0983 WAS COERCED, INVOLUNTARY, AND BASED UPON AN UNTRUE FACTUAL BASIS.
(C) THE COURTS SHOULD GRANT POST-CONVICTION RELIEF BASED ON CUMULATIVE ERROR.
(D) TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE IMPOSITION OF A MANDATORY EXTENDED TERM FOR SECOND TIME OFFENDERS AS THE FACT OF HIS PRIOR CONVICTION WAS AN ELEMENT OF THE OFFENSE WHICH REQUIRED A SENTENCE GREATER THAN THAT OF A FIRST OFFENDER.
(E) TRIAL COUNSEL WAS INEFFECTIVE AS HE FAILED TO CHALLENGE THE INDICTMENT WHICH DID NOT ALLEGE AGGRAVATING FACTORS.
(F) TRIAL COUNSEL WAS INEFFECTIVE FOR REPRESENTING TO DEFENDANT THAT THE FORFEITURE OF MONIES WAS A SHOWING OF "GOOD FAITH."
We have reviewed the record and we conclude that defendant's arguments are lacking in merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Ahto in his February 14, 2008 oral decision. We offer the following brief comments.
A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 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. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).
Where a defendant argues that the ineffective assistance of counsel led to the entry of a guilty plea, the Strickland standard applies. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 209-10 (1985); State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. Difrisco, 137 N.J. 434, 457 (1994)). In this context, the voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. 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)). The defendant must demonstrate that the attorney's deficient performance prejudicially affected the plea process and 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; see also NunezValdez, supra, 200 N.J. at 138-39 (requiring, in addition to a showing of deficient conduct, the showing of a reasonable probability that, but for the deficient conduct, the defendant would not have pled guilty and would have insisted on going to trial).
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. "'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).
Defendant's first point of argument raises three issues. He first contends that trial counsel was deficient due to inadequate investigation regarding Erdmann. However, the PCR court made critical credibility determinations regarding Erdmann and the events pertaining to her, which are supported by the record and to which we defer. See State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). Based on those determinations, even if the first Strickland prong was satisfied, the second was not. The record supports Judge Ahto's conclusion that the result would not have been different.
Defendant also argues under Point I that, based upon his calculations, taking into consideration the offenses to which he pled guilty, he was exposed to a minimum period of parole ineligibility of only twelve years and four months. The plea agreement recommended a sixteen-year period of parole ineligibility. Defendant argues that his attorney was deficient for not arguing at sentencing for less. Judge Ahto found no deficient conduct. Alternatively, he found no evidence to suggest that Judge Bozonelis did not know that less than sixteen years could be imposed or that he would have considered less than a sixteen-year period of parole ineligibility. We agree.
This was a "global" settlement resulting in the disposition of at least twelve outstanding indictments and several other criminal and motor vehicle complaints against defendant. It is readily apparent that the parties negotiated for an overall disposition, a critical component of which was the mandatory minimum period of time that defendant would be incarcerated before being eligible for parole. Judge Ahto's conclusion that, even if an argument had been made for less than sixteen years it would not have been granted, is supported by the record, and we have no occasion to interfere with it.
Finally under Point I, defendant argues that when he agreed to withdraw his motion to vacate his plea and proceed to sentencing under the plea agreement, he was misinformed that he was waiving his right to appeal issues other than denial of the suppression motion and sentencing issues. However, defendant has demonstrated no viable appeal issues that he was precluded from presenting. He has alluded to the Erdmann issue. However, that issue was properly the subject of a collateral proceeding, and it was indeed fully litigated in this PCR proceeding, with a full evidentiary hearing including Erdmann's and defendant's testimony.
At the PCR proceeding, defendant's trial counsel testified that all of defendant's cases were straightforward and there were no viable defenses in any of them. He also testified he was prepared to go to trial in all of the cases. The assistant county prosecutor testified that he was also ready to try all of the cases. Indeed, the plea agreement was finalized only after a jury panel had been brought into the courtroom to begin the first trial. Defendant presented no competent evidence of any viable defense in any of his cases. Judge Ahto's credibility determination as to the testimony of defendant's trial counsel and the assistant county prosecutor supports the conclusion that no viable appeal issues were taken away from defendant by virtue of his guilty plea.
Under Point II, defendant argues that his appellate counsel was ineffective in the presentation of his suppression issue on direct appeal. We find this argument unpersuasive. The suppression motion was properly denied under the rationale set forth in our prior opinion. Even if it were not, we agree with Judge Ahto's conclusion that the State would have nevertheless prevailed under the inevitable discovery doctrine. See State v. Sugar, 100 N.J. 214, 235-38 (1985).
Under Point III, defendant raises no particular arguments, but merely asserts that the order denying him PCR relief should be reversed because he was denied the effective assistance of trial and appellate counsel. The arguments listed in Point IV are set forth pursuant to State v. Webster, 187 N.J. 254, 257 (2006), and State v. Rue, 175 N.J. 1, 18 (2002). We find no merit in these additional arguments and decline to comment on them.