February 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEANDER WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 02-01-0018, 04-12-1798, and 05-06-0872.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 1, 2010 '
Before Judges A.A. Rodriguez and C.L. Miniman.
Defendant Leander Williams appeals from the denial of his application for post-conviction relief (PCR) following his guilty plea to third-degree distribution of cocaine on or near school property, contrary to N.J.S.A. 2C:35-5a, -7. We affirm.
On October 29, 2004, the New Brunswick police set up surveillance in the vicinity of Remsen Avenue and Seamen Street. That was a location known for a high incidence of narcotics activity. The police observed defendant standing on the corner in front of a liquor store while an unidentified man riding a bicycle rode up to him. Defendant spit something into the man's hand, and the man gave defendant cash and rode off on the bicycle.
Shortly after, co-defendant Theodore Wright approached defendant on the bicycle, and the same thing occurred. Wright rode off on the bicycle and was stopped by other New Brunswick police officers a short distance from the intersection of Commercial Avenue and Townsend Street. A package of cocaine was recovered from Wright's pocket and that information was conveyed to the surveilling officers, who moved in and arrested defendant, recovering $725 from his pocket.
After several pretrial motions, defendant sought to be released on bail, having been held on a violation of probation since his arrest. On October 5, 2005, the judge denied the application. On October 17, 2005, defendant pled guilty to third-degree distribution of cocaine within 1000 feet of a school zone. Defendant's sentencing was scheduled for December 12, 2005. At that time, he moved to withdraw his plea. The judge denied the request because there was no indicated basis for the withdrawal. Defendant was then sentenced in accordance with the plea agreement, which indicated that the prosecutor would dismiss three of the four charges in the indictment and recommend a sentence of ten years incarceration with five years of parole ineligibility.
On January 13, 2006, defendant filed a notice of appeal from the judgment of conviction entered on December 12, 2005. The appeal was argued on August 22, 2007, and we affirmed the sentence imposed as not manifestly excessive or unduly punitive nor an abuse of discretion by order of affirmance entered that day. Defendant sought certification, but the petition was denied. State v. Williams, 193 N.J. 276 (2007).
While that appeal was pending, defendant moved to withdraw his guilty plea, arguing that no school-zone map had been entered into evidence at the time of his plea. The prosecutor observed that defendant had stipulated that he was within 1000 feet of a school and stated that he could not recall any occasion when a school-zone map was presented at a plea where the defendant was admitting guilt. Defendant, however, contended that he was not physically within 1000 feet of a school, specifically the Redshaw School, as charged in the indictment. Thus, he urged that he was innocent of the offense to which he pled.
In ruling on his application, the judge found that there was a factual basis on the record for defendant's plea and that he knowingly, voluntarily, and intelligently entered into the plea agreement. The judge found that the plea was entitled to finality and that defendant had not demonstrated that a school-zone map had to be produced at the time of the guilty plea. Thus, the judge denied the application. Defendant did not appeal the denial of his motion to withdraw his plea.
On April 8, 2008, defendant filed a pro se PCR petition to which he attached a two-page legal argument. He urged that he "learned that the plea agreement entered was not the plea I accepted." Further, I do not understand how I ended up with a third[-]degree charge with a 10-year term with 5-year parole ineligibility. Neither the prosecutor nor my attorney advised me that I was copping out to [a] 10-year term with [a] 5-year parole ineligibility for the third[-]degree charge contained within Indictment No. 04-12-1798-I charging possession with intent to distribute on or near school property. If my attorney, the judge, or prosecutor had explained to me that, I was copping out to [a] 10-year term with 5-year parole ineligibility for a third[-]degree charge which carries 3 to 5 years, I would have never agreed to a 10-year term with 5-year parole ineligibility.
Instead, defendant said that he understood that he was pleading guilty to all three counts in this indictment. He asserted that he could not read or write and relied on his attorney's advice as to what he was pleading. He insisted that he did not plead guilty to an extended term. He understood the extended term to only be imposed if he failed to appear for sentencing.
Subsequently, counsel for defendant filed an amended petition for PCR alleging ineffective assistance of plea counsel, who allegedly failed to investigate and properly verify that the arrest location was within 1000 feet of school property. Additionally, plea counsel was ineffective when he allowed defendant to plead guilty while defendant believed that his cooperation and assistance in ongoing narcotics and other criminal investigations with the State would lessen his sentence. Counsel did not have defendant file an amended petition verifying this allegation. There is no mention in defendant's pro se petition of this belief. There is also no proof in the record that he cooperated and assisted the authorities in conducting any such investigations.
The PCR judge, who was new to the case, heard argument from counsel but took no evidence. Defendant's attorney argued that he had been advised by his plea counsel that he was within 1000 feet of a school at the time of the drug transaction when, in fact, he was not. He also argued that defendant understood from his attorney that, after the plea, there would be consideration to reducing his sentence if he cooperated with the authorities. As evidence of that understanding, defense counsel produced an October 11, 2005, note from defendant's attorney to defendant in which he stated:
In case we do not talk soon, I called Pros. She said must take plea first, then complete your part of deal, then see if they will reduce stip and agree on request for release until sentence. She was firm -- no bargaining with her possible.
PCR counsel contended that defendant learned while he was serving his sentence that the site of the arrest was not within 1000 feet of the Redshaw School. Counsel also contended that defendant asked his plea counsel to show him a school-zone map, but the attorney never did so. No evidence supported these contentions. Counsel stated that he examined a school-zone map at the Public Defender's office and that defendant was not within the school zone. He asserted that the school zone cut right through the liquor store, "leaving an area in front of the store where the records indicate he was arrested."
The prosecutor produced the school-zone map for the City of New Brunswick. She urged that the corner on which defendant was standing, the southeast corner, was really within the Redshaw School zone and squarely within two other school zones-the Greater Brunswick Charter School zone and the United Church of Christ Greater New Brunswick Daycare Council zone. She pointed out that defense counsel's investigator measured from the northeast corner of Remsen Avenue and Seamen Street, but 101 Remsen Avenue, the American Liquor store, was on the southwest corner, so the measurement was invalid. Thus, she urged that the school-zone issue had no merit.
In response to the State's arguments, defendant's attorney pointed out that the October 11, 2005, note was prepared a week before the plea bargain. PCR counsel urged that an evidentiary hearing was necessary to develop what the prosecutor expected defendant to do in order to earn a reduction in the amount of time to be served. He sought an opportunity to have plea counsel testify so that he could develop the record and demonstrate that defendant's agreement to plead guilty was made based on this promise of a future opportunity to have the sentence reduced. PCR counsel further argued that the liquor store was not located at 101 Remsen, but rather was on the corner and that 101 Remsen might be closer to the school zone than the corner. He urged that defendant had raised a genuine issue as to whether the site of the drug transaction was within 1000 feet of the Redshaw School. He argued that he and the prosecutor disagreed over exactly where the school zone was located and exactly where defendant sold the cocaine and that the dispute had to be resolved with testimony on the stand by someone who could swear to the map.
The prosecutor responded that, when defendant pled guilty, he stipulated that he was within a school zone, stating that he did not know what school. She urged that there were two other school zones that covered that intersection. The prosecutor also pointed out that the standard plea form indicates that defendant answered the question respecting other promises in such a way as to indicate that there were none, yet now he was "claiming there was a promise of some vague cooperation, possibly reduction of the stipulated sentence. But there's no evidence of that. The record is clear of that." The judge carried the matter to another date and asked both the prosecutor and PCR counsel to provide him with the maps on which they were basing their calculations, which he felt might obviate the necessity of an evidentiary hearing.
At the reconvened hearing on October 31, 2008, the judge put his findings on the record. The judge had reviewed the State's map and had also reviewed defendant's map. The maps were identical, prepared by the same engineering company in 2001. He found from the maps that there was nowhere to stand at the intersections of Remsen Avenue and Seaman Street that was not within some school zone, and defendant had pled to distributing cocaine within a school zone, not specifically the Redshaw School zone. Thus, he concluded that defense counsel was not ineffective in failing to obtain an exact measurement of the distance between the Redshaw School and the exact point of the drug transaction.
As to defendant's claim based on the note from his attorney dated October 11, 2005, the PCR judge noted that the plea judge had asked defendant at the time of the plea about his understanding of the plea bargain. Defendant stated that his bargain was "ten with a five." The plea judge had asked if defendant understood that meant ten years in prison and five years before he came before the Parole Board. Defendant replied, "Yes." Defendant did not indicate that there were some negotiations that were still ongoing. Additionally, there was nothing in the record before the PCR judge indicating that plea negotiations continued after the plea was entered. As a result, the PCR judge concluded that defendant had not made out a prima facie showing of ineffective assistance of counsel and denied PCR. On November 5, 2008, the judge entered an order denying PCR. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I -- THE PCR COURT ERRED IN DENYING POST[-]CONVICTION RELIEF BASED ON THE MISINFORMATION PROVIDED TO DEFENDANT BY HIS ATTORNEY AT THE TIME OF HIS GUILTY PLEA TO THE EFFECT THAT NEGOTIATIONS WITH THE STATE WOULD CONTINUE AFTER DEFENDANT PLED GUILTY.
POINT II -- THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING ON WHETHER OR NOT DEFENDANT'S DECISION TO PLEAD GUILTY WAS BASED ON THE MISINFORMATION HE RECEIVED FROM HIS ATTORNEY REGARDING THE CONSEQUENCES OF HIS PLEA.
POINT III -- THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING ON WHETHER OR NOT DEFENDANT'S ALLEGED DISTRIBUTION OF CDS WAS WITHIN 1000 FEET OF THE REDSHAW SCHOOL AS CHARGED IN THE COUNT OF THE INDICTMENT TO WHICH DEFENDANT PLED GUILTY.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2000) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error. Ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)).
In Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, the defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).
"'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). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Jack, 144 N.J. 240, 248 (1996) (citation and internal quotation marks omitted).
To make out a prima facie claim for post-conviction relief "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citation omitted), certif. denied, 162 N.J. 199 (1999).
Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.]
After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). This is so because defendant has failed to allege in his verified petition what his understanding was of what he was to do in order to secure a reduction in his sentence between the date of the plea and the date of the sentence. As such, he has not made out a prima facie case of ineffective assistance of counsel with respect to the negotiation of this plea. As to the school-zone map, the trial judge resolved the apparent conflict between the State's map and the defense map by finding that the two maps were identical and that the three school zones covered that intersection and, in particular, the corner on which defendant was standing. Defendant has not attached to his appendix a copy of the map on which the judge relied in order to demonstrate that the judge made an erroneous finding of fact. Thus, defendant has not demonstrated that his counsel was ineffective in failing to measure the distance from the site of the drug transaction to the school in order to mount a defense to the school-zone charge.
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