January 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHEED GUMBS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-12-2320.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 5, 2010
Before Judges Graves and Messano.
Defendant Rasheed Gumbs appeals the denial of his petition for post-conviction relief (PCR). He raises the following points for our consideration:
THERE WAS AN INSUFFICIENT FACTUAL BASIS GIVEN BY DEFENDANT TO SUPPORT HIS CONVICTIONS, AND DEFENDANT SHOULD BE PERMITTED TO HAVE HIS PLEA OF GUILTY VACATED. R. 2:10-2. (Raised Below)
DEFENDANT SHOULD BE PERMITTED TO HAVE HIS PLEA OF GUILTY VACATED AS IT WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY ENTERED INTO. (Raised Below)
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL. (Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant was indicted by the Essex County grand jury and charged with the first-degree murder of Jewell Noon, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree attempted murder of Lucas Campbell and Tony Wardrick, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2); second-degree aggravated assault of Campbell and Wardrick, N.J.S.A. 2C:12-1(b)(1); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4(a). Although the circumstances are not disclosed in the record, the State amended the murder charge to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4.
The State alleged that defendant shot and killed Noon as he slept in a house adjacent to an alley that ran between Seventh and Eighth Avenues in Newark. It was undisputed that defendant did not intend to shoot or kill the victim; rather, the State contended that Noon was struck by a stray bullet fired by defendant in the direction of Wardrick and Campbell.
At trial, Wardrick testified that on the evening in question, he and Campbell were in the alley speaking to some girls they knew.*fn1 Someone on a bike rode by the alley and Campbell told Wardrick that the man had a gun. Together, they ran toward the back of the alley, "to the back of the house, [and] peeped out through the alleyway." The man on the bike came back to the alley and said, "That's you," and "started shooting." Wardrick and Campbell ran as "numerous" shots were fired.
Wardrick was unable to identify defendant in court. The prosecutor's attempt to have Wardrick identify a photograph of defendant that he allegedly selected during police questioning elicited equivocal answers. After a side bar discussion that is not transcribed, Wardrick was permitted to read to the jury the entire statement he provided to the police. In it, Wardrick claimed that the man on the bike pulled into the alley and asked, "'Is that you[?]'" When he and Campbell ran, the man fired five shots in their direction. The statement also detailed Wardrick's selection of defendant's photo from an array shown to him by the police. At trial, however, Wardrick claimed that although he selected the photo, the police suggested to him that defendant was the suspect.
During jury deliberations, defendant accepted a plea bargain and agreed to plead guilty to aggravated manslaughter, aggravated assault upon Wardrick, unlawful possession of a firearm and possession of the firearm with an unlawful purpose. In return, the State agreed to a maximum sentence of twenty years, with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The balance of the indictment was to be dismissed at sentencing.
At the plea allocution, defendant was placed under oath and questioned by defense counsel. We quote the colloquy at length because it is central to the issues presented on appeal.
Q. [O]n [July 1, 2000] did you come into contact with someone who attempted to rob you at knife point and with mace?
Q. And as a result of your being robbed . . . did you get a weapon, . . . a handgun that you had, to attempt to go after the person that had attacked you?
Q. While you were attempting to go after the person that had robbed you, did you . . . find yourself in the area of 150 South Eighth Avenue . . . ?
Q. And while you were there, did you take the handgun and fire down the alleyway toward the person that had attacked you?
Q. And did you subsequently learn that you inadvertently had hit -- one of the bullets from the weapon that you fired had hit somebody that was laying [sic] in bed asleep at 150 South Eighth Avenue . . . ?
A. Did I what?
Q. Did you find out that the bullet . . . had hit somebody that was asleep in their bed?
A. A bullet hit somebody in the head, my bullet. Nobody else's bullet hit nobody in the head.
Q. Well, you . . . weren't intending to kill Mr. [Noon] were you?
Q. You were attempting to go after the person that had robbed and maced you; is that right?
A. I was trying to scare him. I wasn't trying to go after no one.
Q. But you shot the weapon.
Q. Five times.
Q. [W]hen you first pulled up to 150 South Eighth Avenue, did you see somebody that you thought was the assailant, and were you attempting to assault that person with your weapon?
Q. Assaulting being pointing the firearm, firing at them, attempting to scare them?
A. I never seen nobody.
Q. The guy that got off the steps and ran down the alley.
A. . . . I didn't seen nobody. I don't even know who that is.
Q. When you first pulled up to 150 South Eighth Avenue, did you see somebody . . . sitting on the steps?
Q. That ran down the alleyway?
Q. So you were just attempting to fire the firearm at the person that assaulted you who you thought had gone down the alley?
The prosecutor then noted,
I think that that suffices [for] possession of a weapon for an unlawful purpose . . . . I think that a case has been made out for the aggravated manslaughter. I am not absolutely certain we've made a case out for aggravated assault, unless of course, . . . it's stipulated on behalf of the defendant that Tony Wardrick was down the alleyway at the time that the defendant fired the shots down that alley.
Defense counsel responded, "We'll stipulate to that."
The judge then questioned defendant. When asked if he had sufficient time to discuss the plea with his attorney, defendant responded, "One day." Asked if that was sufficient, defendant responded, "I suppose so." Defendant then acknowledged that he was satisfied with defense counsel's representation, that he fully understood his right to continue the trial, that he was freely pleading guilty without coercion, and that he was not under the influence of drugs or alcohol. The judge reviewed the plea form with defendant, who acknowledged his initials and signature on the form, and told the judge he was pleading guilty because he was in fact guilty.
Before sentencing, the judge conducted a hearing in response to defendant's unwillingness to cooperate in the preparation of a pre-sentence investigation. Defense counsel represented that defendant had "no recollection of entering into a plea[,]" and did not "understand why he was not called back up into court to finish his case." Defense counsel requested that defendant be psychologically evaluated. The prosecutor did not object, but requested that defendant be examined by a court-appointed expert. The judge granted the request, and defendant was examined by Christina Joseph, Ph.D., a forensic psychologist at the Anne Klein Forensic Center in Trenton.
Approximately six weeks later, in conjunction with the sentencing hearing, Joseph was called as a witness and questioned regarding her examination of defendant. Defense counsel, who had apparently left the employ of the Public Defender's office, told the judge that before leaving, she had another attorney in the office contact "Dr. Greenfield" to conduct a defense examination of defendant to "corroborate or contest" Joseph's opinion. Defense counsel explained that although the "paperwork . . . was put through, . . . Greenfield ha[d] yet to do an examination." She further explained that while she was participating in the hearing, she was "in no way waiving . . . a right . . . to ask that an evaluation be done by a psychiatrist that [defendant had] hired." She requested the judge adjourn the sentencing. The prosecutor objected to any delay in Joseph's testimony, but deferred to the judge regarding adjournment of the sentence.
Noting that he had "opened this can of worms," the judge acknowledged reviewing Joseph's report. While recognizing defendant's right to retain an expert, the judge concluded he was not going to "delay th[e] proceeding or . . . the sentencing." The judge further observed that defendant "ha[d] filed some motions for ineffective assistance of counsel," but noted that he was "really at a los[s] for words that [defendant] could even think that [counsel] was ineffective."*fn2 The judge explained that defendant could still be evaluated, and, depending upon the expert's opinion, defendant could file a motion for reconsideration, "or make it part of [defendant's] appeal . . . ."
Joseph was then briefly questioned about her examination of defendant and her report; she affirmed its contents. She concluded that defendant was "malingering cognitive (memory) and psychiatric symptoms in an attempt to avoid facing his sentencing hearing."*fn3
Defense counsel, who had not received a copy of defendant's ineffective assistance of counsel motion, requested that defendant argue the motion himself. Defense counsel also renewed her request for an adjournment to permit further evaluation of defendant. The judge again denied the request, as well as any consideration of defendant's ineffective assistance of counsel claim, noting it was more properly "a post [-]conviction relief motion . . . ." The judge was "of the opinion that [defendant] [wa]s malingering" and "kn[ew] what was done when he took his plea."
The sentencing proceeded after a brief recess during which defense counsel reviewed the pre-sentence report with defendant. Defense counsel vigorously argued in mitigation of sentence. When questioned by the judge, defendant stated that he "was innocent from the beginning," that "people put words in [his] mouth," and that his "[s]ixth [a]mendment" rights had been violated. After consideration of the aggravating sentencing factors, N.J.S.A. 2C:44-1(a), and finding no mitigating factors, N.J.S.A. 2C:44-1(b), the judge sentenced defendant to eighteen years imprisonment, with an 85% period of parole ineligibility on the aggravated manslaughter conviction, and concurrent sentences on each of the remaining charges.
Defendant filed a direct appeal limited to the excessiveness of his sentence. However, at the Excessive Sentence Oral Argument (ESOA) proceedings, defense counsel specifically argued that defendant's factual bases for the aggravated manslaughter and aggravated assault charges were insufficient. He contended that trial counsel's stipulation that Wardrick was in the alley when defendant fired the weapon was improper, noting, "counsel can't stipulate to a factual basis." Appellate counsel also argued that "defendant should have been given an opportunity to present, or at least to have [defendant] evaluated by a . . . psychologist of his choosing."
The prosecutor noted that defendant had given a statement to the police in which he "admit[ted] . . . shooting five shots down the alleyway in an attempt . . . to scare the guy who robbed him. [Defendant] admit[ted] that there was someone down there." The prosecutor also contended that the stipulation was only intended to identify Wardrick as the person in the alley.
We affirmed defendant's sentence but remanded the matter for amendment of the judgment of conviction to reflect the required merger of the conviction under N.J.S.A. 2C:39-4(a) with the aggravated manslaughter conviction. Ten months later, defendant filed a pro se PCR petition in which he alleged "constitutional issues" and the "in[e]ffective assistance of counsel."
After PCR counsel was assigned, defendant filed a supplemental certification in support of the petition. He claimed to have no recollection of pleading guilty or reviewing the plea form with his attorney. Defendant claimed he was "suffering from mental problems and had been taking a lot of cold medicine that day which made [him] very groggy." Defendant also claimed to have filed a pro se motion to withdraw his plea that "was never heard." Defendant certified that he asked trial counsel to file an appeal "relating to the insufficiency of the factual basis of [his] plea and . . . that [his] motion to withdraw [his] plea had not been heard." Defendant claimed such an appeal was never filed. Defendant also asserted that he requested his appellate attorney to appeal the sufficiency of his factual basis, but that this was not done. Defendant sought to "withdraw [his] plea and go to trial again."*fn4
A hearing was held before the trial judge on defendant's PCR petition after which the judge rendered a comprehensive, oral decision denying relief. Approximately one week later, the judge filed a lengthy, written opinion supplementing his decision. Regarding the lack of a defense psychological examination, the judge noted that defendant had been examined by a court-appointed psychologist, and "[t]he likelihood [that] another equally qualified doctor would have come to different conclusions regarding [defendant's] mental competency [wa]s slim." He noted that trial counsel attempted to have defendant examined but that the examination never occurred. The judge concluded that on this issue, defendant had failed to "meet either prong of the Strickland test."*fn5
Regarding defendant's claim that trial counsel was ineffective for failing to argue the motion to retract his plea, the judge concluded that defendant failed to demonstrate any prejudice. Characterizing counsel's choice as "strategy, not ineffective assistance[,]" the judge noted that defendant would have faced the jury's verdict, and "there [wa]s no guarantee the sentence would have been anything less." The judge also concluded that it was unlikely that a motion by defendant to withdraw his guilty plea would have been successful.
The judge also concluded that defendant's factual basis for aggravated manslaughter was sufficient, noting, "[i]n a situation where one begins pursuing an individual and firing shots in a public place, the threat of injury is obviously great." The judge did not directly address defendant's claim of ineffective assistance by appellate counsel, except to say that defendant had failed to demonstrate how the alleged errors amounted to ineffective assistance.
On July 29, 2008, the judge entered an order denying defendant's PCR petition without an evidentiary hearing. This appeal followed.
Defendant first contends that the factual basis he provided was insufficient to establish the necessary elements of aggravated manslaughter. As we discern the argument, defendant claims that he never admitted to firing the weapon at anyone because "no one was present in the alley," that defense counsel's stipulation that Wardrick was in the alley was improper and contrary to Wardrick's own trial testimony, and that, in any event, "the fact that shots were fired in a public place was" insufficient "to sustain defendant's conviction for aggravated manslaughter." We find the argument unpersuasive for a number of reasons.
Initially, we note that the sufficiency of defendant's factual basis was raised on direct appeal at the ESOA hearing and rejected by the panel. No further appeal was sought. Rule 3:22-5 provides, "A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . or in any appeal taken from such proceedings." Thus, for reasons other than those relied upon by the PCR judge, we reject defendant's argument.
Moreover, the contention is unavailing on its merits. The trial testimony revealed that after defendant reappeared in the alley, Wardrick and Campbell ran down the alley, away from defendant, and hid behind a house, peering out to see what defendant was doing. After asking, "Is that you?", defendant fired five shots in their direction. Defendant admitted under oath that he fired down the alley toward the person he believed had robbed him, though he also claimed that he did not see the person and his intention was only to frighten him. A stipulation was elicited to prove that Wardrick, the victim of the assault named in the indictment, was "down the alleyway at the time that the defendant fired the shots." This was undoubtedly true, even if Wardrick had hidden behind a house seconds before defendant began firing. Defense counsel's stipulation did not prejudice defendant's rights.*fn6
To be guilty of aggravated manslaughter, the State must prove that "defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life." State v. Cruz, 163 N.J. 403, 417 (2000). In State v. Gaines, 377 N.J. Super. 612, 620-21 (App. Div.), certif. denied, 185 N.J. 264 (2005), we affirmed defendant's conviction for aggravated manslaughter despite his objection to the judge's decision to charge aggravated manslaughter, which the defendant argued was contrary to the evidence addressed at trial and the State's contention that the homicide was a purposeful and/or knowing murder. The facts presented in Gaines are instructive.
There, the victim was shot and killed while attending a high school graduation party at which more than 200 people were present. Id. 616. Immediately after the shooting, the defendant was observed hiding in some nearby bushes with a revolver in his hand. Id. at 617. Forensic proof revealed that the bullet had passed through a wooden object before striking the victim; the medical examiner acknowledged that it might have passed through a tree branch. Id. at 618. The defendant told one of the State's witnesses that the shooting was an "accident" and that he intended to kill someone else. Id. at 619. The defendant himself testified that he left the party before the shooting and did not intend to kill anyone. Ibid.
In Gaines, we noted that, the propriety of the judge's decision to submit the crime of aggravated manslaughter to the jury depend[ed] on whether the evidence clearly indicated a basis for finding that [the] defendant fired the gunshot that killed [the victim] consciously disregarding a probability of causing the death of a person in the backyard but without an awareness that it was practically certain that someone would die as a result. Direct proof of a defendant's mental state is not required. His awareness of the probability or practical certainty of a result, like willfulness or intent, may be inferred from the circumstances and his conduct.
Based on th[e] evidence, the jury could find that [the] defendant raised the gun, aimed at a branch, and fired above the crowd, not into it. Given the size of the group, the jurors could have concluded that he fired under circumstances manifesting extreme indifference to human life, consciously disregarding a probability but unaware of a practical certainty of causing the death of a person below. [Id. at 621-22 (citations omitted).]
In this case, defendant admitted firing five shots in the direction of Wardrick down an alleyway between two buildings. Although not "in the alley," Wardrick was behind one of the buildings, peering out, having fled from defendant only seconds earlier. It was undisputed that one of defendant's bullets struck and killed Noon as he slept in the building adjoining the alley. Although defendant claimed that he did not see Wardrick and was only trying to scare the person who robbed him, firing five shots down a narrow alley evidences "extreme indifference to human life, [by] consciously disregarding a probability [even if defendant was] unaware of a practical certainty of causing the death of a person" nearby. Gaines, supra, 377 N.J. Super. at 622. Both procedurally and substantively, we reject defendant's first point on appeal.
Defendant next argues that he should have been permitted to withdraw his guilty plea in that he "could not have knowingly pled guilty to aggravated manslaughter" "[b]ecause his likely understanding was erroneous as a matter of law." For the reasons already expressed, we reject this argument.
Alternatively, defendant also contends he should have been permitted to withdraw his plea because "[t]he issue of whether [he] . . . knew he was pleading guilty, or had the mental capacity to plead guilty . . . was never fairly litigated." We reject this claim, too, for reasons other than those expressed by the judge.
Appellate counsel raised this issue before the ESOA panel; it was rejected. R. 3:22-5. Perhaps the judge could have granted an adjournment prior to sentencing to permit a defense examination, but we cannot conclude he mistakenly exercised his discretion by proceeding. First, the judge had Joseph's report that concluded defendant was malingering to avoid his sentence. Second, although the judge provided time for defendant to have his own expert conduct an evaluation, none was performed. There has never been any explanation as to why an evaluation was not completed. Third, to this day, there is no evaluation in the record other than Joseph's. In other words, there is nothing to indicate that defendant's mental condition at the time of his guilty plea was such that he did not knowingly and voluntarily waive his rights and plead guilty.
Lastly, defendant argues that trial counsel provided ineffective assistance because she failed to "explicitly argue that defendant should be permitted to withdraw his plea, with or without a psychological examination"; "improperly stipulated to facts that were required to be established by defendant"; "did less than was required to prove defendant did not have the mental capacity to render the plea acceptable"; and "never correctly explained [the offense] to defendant." Defendant argues appellate counsel provided ineffective assistance because he "was required to challenge defendant's plea and the [in]effectiveness of trial counsel, as requested, but failed to do so." We find the arguments unpersuasive.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability[,]" Fritz, supra, 105 N.J. at 58, that the deficient performance "affected the outcome . . . . " Id. at 49. We apply the same standard to defendant's claims of ineffective assistance of appellate counsel that we do to claims of ineffective assistance of trial counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987)), certif. denied, N.J. 444 (2008).
For reasons already expressed, defendant has failed to demonstrate the ineffective assistance of trial counsel based upon the stipulation she entered, the lack of a defense psychiatric examination, or some failure to explain the elements of aggravated manslaughter. Even if we deemed defense counsel's performance deficient, and we do not, none of these alleged deficiencies "affected the outcome." Defendant freely admitted to the necessary elements of aggravated manslaughter, counsel's stipulation did not provide a missing element of any offense, and no psychiatric evaluation has ever been produced to demonstrate defendant lacked the mental capacity to enter the guilty plea.
The judge concluded trial counsel made a strategic decision by not pursuing defendant's pro se motion to withdraw his guilty plea. While we do not necessarily agree with that conclusion, had trial counsel pursued the motion, it would have been unsuccessful. Defendant has failed to meet the second prong of the Strickland/Fritz test on this point.
In State v. Slater, 198 N.J. 145, 157-58 (2009), the Court identified four factors to be considered in deciding a motion to withdraw a previously-entered guilty plea. The first is whether the defendant has "asserted a colorable claim of innocence ." Id. at 157. Next, the judge should consider "the nature and strength of defendant's reasons for withdrawal . . . ." Id. at 157-58. The third factor is whether the plea was entered pursuant to a plea bargain. Id. at 158. And, lastly, the court must consider "whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. In all circumstances, the defendant bears the burden "'to present some plausible basis for his request, and his good faith in asserting a defense on the merits[,]'" and the motion is addressed to the trial court's sound discretion. Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).
On the record presented, it is difficult to ascertain what was the exact nature of defendant's pro se motion to withdraw his guilty plea. In his PCR certification, defendant claimed that he had no recollection of pleading guilty, presumably once again raising a claim of incompetency. In his brief and at the PCR hearing, PCR counsel did not elucidate any further basis for the motion.
Judged against the Slater standards, defendant's motion to withdraw his guilty plea would have been denied had it been formally argued. Defendant made no "colorable claim of innocence." To the extent his claims rested upon the legal inadequacy of his factual basis, we have rejected the argument. The "nature and strength of defendant's reason for withdrawal" were seemingly limited to the legal argument raised and his claim of psychiatric illness. As already noted, there is nothing to support the claim that defendant lacked the mental capacity to knowingly enter his guilty plea. Thirdly, defendant pled guilty; at the time, he admitted doing so knowingly and voluntarily, and after fully conferring with his attorney. Lastly, defendant entered his guilty pleas as the jury was deliberating. Considering the issue of prejudice to the State, the Slater court noted, "[a]nother important consideration is whether trial has begun." Id. 161. If "all of the factors" were considered, defendant's motion to withdraw his guilty plea would have undoubtedly been denied. Id. at 162.
Defendant's claims regarding the ineffective assistance of appellate counsel lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). Appellate counsel did "challenge defendant's plea." Absent some specific allegation of prejudice, the fact that he did so at the ESOA proceedings, as opposed to filing a plenary appeal, does not demonstrate he provided ineffective assistance.