February 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDREW T. WYBLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-12-1664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2010 -- Decided: Before Judges Grall and C.L. Miniman.
Defendant Andrew T. Wyble appeals from the denial of his petition for post-conviction relief (PCR) in connection with his August 4, 2006, convictions for two first-degree armed robberies to which he pled guilty and is serving two concurrent eleven-year terms subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He raises only one issue on appeal:
THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT ANEVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE[U.S. CONST.] AMENDS. VI, XIV; [N.J. CONST.]ART. I, PAR. 10.
We conclude that the PCR judge did not err in denying defendant's PCR petition without an evidentiary hearing. In granting or denying an evidentiary hearing, "courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Preciose, 129 N.J. 451, 462-63 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Id. at 462. However, "[i]f the [trial] court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
To establish a prima facie claim of ineffective assistance of counsel, the defendant must meet the standard promulgated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted in New Jersey under State v. Fritz, 105 N.J. 42, 57-58 (1987). Whether the defendant's constitutional right to counsel has been abridged is "measured by applying a 'simple, two-part test.'" State v. O'Neal, 190 N.J. 601, 629 (2007) (Rivera-Soto, J., concurring) (quoting Fritz, supra, 105 N.J. at52).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
To meet the first prong of the Strickland/Fritz test, a convicted defendant must identify acts or omissions by the trial counsel that were not "the result of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). A court analyzing a defendant's argument under this first prong "must give great deference to counsel's performance and must strongly presume that the attorney's conduct constituted reasonable professional assistance." Petrozelli, supra, 351 N.J. Super. at 21-22 (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. Petrozelli, supra, 351 N.J. Super. at 22.
If the court finds that counsel's errors were significant enough to meet the first prong of Strickland/Fritz, the defendant must then demonstrate that the error was "prejudicial to the defense." Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The burden of proof rests "squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). Finally,
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.]
We begin with the second prong to determine whether defendant has suffered prejudice as a result of the deficiencies he has alleged. Before we can do so, we must briefly summarize the identification evidence in this case because defendant's claims hinge on that evidence.
In the early morning hours of August 26, 2005, two armed robberies were committed in Wanaque. The first took place at 2:30 a.m. at a local bakery. Two men entered the bakery, one of whom had a gun. There were several employees in the bakery at the time, including Jan Orlicki and Alegandro Ornelas, the victims. Orlicki described the man "with the gun as wearing a checkered handkerchief covering his face below his eyes and [having] light[-]colored hair." The gun was black and about nine inches long. In his typed statement prepared that day at 2:10 p.m., Orlicki stated that the gunman was shorter than Orlicki, although the police record does not disclose Orlicki's height. The gunman was skinny and young, and he had "[d]ark hair, definitely not light hair," contradicting his earlier statement.
Ornelas said the gunman had a scarf over his face and was American, tall, and white. Ornelas apparently did not give a typed statement to the police. Neither Orlicki nor Ornelas reported the crime to the police until their boss did so at 12:30 p.m.
Based on Ornelas's description of the other robber, the police were able to identify him as T.L., a juvenile. On the date of the robbery, they brought him to the police station, and he gave a statement at 8:59 p.m. He admitted participating in a robbery at the bakery earlier that day and said that his accomplice was named "Wack," whom he had initially met at the "clock tower." He did not know his full name or where he lived. He said Wack was as tall as one of the police officers, had "brownish hair a little lighter, [and was] white[ and] skinny." Wack was wearing a dark hoodie, dark pants, black sneakers, and a red flag over his face. Wack had a black BB gun that looked like an automatic weapon. T.L., Wack and others were at the home of Ethan Dahl before the robbery. T.L. described the robbery and said that, when it was over, they "ran down the street to the [G]olden [A]ge [W]oods and burned the bandana and ran" to Dahl's house. Once there, T.L. flushed Ornelas's wallet down the toilet after Wack removed the money. Wack then left the house with another juvenile. T.L. told the police that he could identify the gunman from a photograph.
The second armed robbery took place at 3:34 a.m. at the local Quick Chek. A man and a juvenile entered the store, one of whom had a gun. There were several employees in the store at the time, including Lorraine Mitchell and Ismael Acosta. Mitchell called the police after the robbers left. When the police arrived, Acosta told one of the officers that he had just been robbed at gun point. He described the gunman as wearing a grey hooded sweatshirt and grey pants with a logo and had a red bandana covering his face. His gun was black, he was white, and he was about five feet, ten inches tall. Acosta also gave a statement at the police station at 6:15 a.m. in which he provided more details of the robbery. In particular, he said that the gunman had brown eyes, light-brown eyebrows, his bandana was red and white, his hood was blocking his face, and he was wearing black, silk-type gym pants with buttons on the side and a white logo on the left side. He was nineteen to twenty years old and had a deep voice. The handgun was pretty big, black, and had a long barrel, and the hole in the barrel was the width of a pen.
Mitchell also provided the police with a statement at 7:41 a.m. that day. She described the gunman as being five feet, ten inches tall and skinny. She said he wore a grey sweatshirt with a hood and a white bandana over his face, and he was in his early twenties. The gun was a black handgun with a long barrel.
Dahl and T.L. later heard about the robbery at the local Quick Chek on a police scanner. When Wack returned to Dahl's house, he talked about robbing the Quick Chek.
The juvenile in the Quick Chek was eventually identified through police investigation as S.E.A. He gave a statement to the police on October 6, 2005. S.E.A. identified the gunman only as "Wack" because he did not know his real name. He stated that he was at Dahl's house during the early morning hours of August 26, 2005, and that he was drunk when he arrived there. After returning from the bakery robbery, Wack came up with the idea of robbing the Quick Chek. S.E.A. and Wack went to the store, sat behind it for a few minutes, and then went in and committed the robbery, after which they went to Addice Park by the baseball field where they waited for two and one-half hours before returning to Dahl's house. Wack was wearing a black hoodie and a bandana, the color of which he could not recall. Because S.E.A. was drunk at the time, he could not remember all of the details of the robbery. Both S.E.A. and T.L. identified defendant from a single, stand-alone photograph.
Defendant, who has blue eyes, which the prosecutor did not disclose to the Grand Jury, seizes on the inconsistencies in the various descriptions and the inconsistency regarding his eye color, and argues that his counsel was ineffective in that he failed to conduct a thorough investigation.
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.), certif. denied, 162 N.J. 199 (1999). Defendant has failed to comply with Cummings because he has not submitted an affidavit or certification describing the facts that an investigation would have revealed. Thus, he has failed to demonstrate prejudice under the second prong of Strickland.
Defendant makes a similar claim with respect to statements made by T.L. regarding their activities that night. Specifically, T.L. claimed that they burned their bandanas behind the bakery right after the first robbery, but the victims of the second robbery gave a description of defendant's bandana that more or less matched the description of the bandana from the first robbery. Defendant urges that his attorney should have obtained an investigation of the truth of T.L.'s claim that he burned the bandanas in the field after the first robbery. However, this claim also fails to satisfy Cummings because defendant has not submitted an affidavit or certification describing the evidence that would have been revealed by an investigation. In any event, the inconsistencies were apparent and required no further investigation in order to effectively cross-examine T.L. Thus, defendant has not established prejudice under the second prong of Strickland.
Defendant also contends that his counsel was ineffective in failing to move for a dismissal of the indictment based on the prosecutor's failure to disclose that defendant's eyes were blue and because he failed to file a Wade*fn1 hearing on the failure of the investigating officers to present T.L. and S.E.A. with a photo array, rather than the single photograph, for purposes of identifying defendant. These claims lack merit because defendant has not demonstrated that the motions would more likely than not would have been granted. Minor inconsistencies in descriptions of a perpetrator are all too common, especially when the victim is focusing on the gun pointed at his head. Defendant has failed to cite any case that would have required the motion judge to dismiss an indictment because of an inconsistency in eye color and other details of the two crimes, which are not exculpatory. As a result, he has not met his burden to demonstrate prejudice under the second prong of Strickland.
This is also true with respect to a Wade motion. Defendant has not demonstrated that the trial judge would more likely than not have suppressed the identifications made by T.L. and S.E.A. Both of the co-defendants knew defendant. They simply did not know his real name. This is not a case where a complete stranger is trying to identify a perpetrator. Defendant has not cited any case that has required the police to use a photo array to identify a perpetrator when the witness knows the perpetrator only by an alias.
To determine the admissibility of out-of-court identifications, New Jersey courts follow the United States Supreme Court's "two-step analysis[, which] requires the court first to ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable. The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." State v. Herrera, 187 N.J. 493, 503-04 (2006). Photo-array identification procedures used with victims and witnesses to a crime are generally deemed less suggestive and less likely to result in misidentification than the presentation of a single photograph. Manson v. Brathwaite, 432 U.S. 98, 117, 97 S. Ct. 2243, 2254, 53 L. Ed. 2d 140, 155 (1977); Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968).
Here, however, the police were seeking identification from two of the perpetrators. In this context, the risks of suggestion, misidentification, and unreliability are lessened. Without some case law requiring a photo array in such a situation, defendant has failed to demonstrate that a Wade hearing would more likely than not have resulted in suppression of the identifications. As a result, the second prong of Strickland has not been satisfied.
Defendant also claims that his counsel was ineffective because he failed to argue mitigating factors under N.J.S.A. 2C:44-1b and non-statutory factors under State v. Warren, 115 N.J. 433 (1989), to support a lesser sentence. Defendant has not identified the mitigating factors that his attorney ought to have argued. We will not try to divine mitigating factors from the record. The burden is on defendant to establish the mitigating factors that ought to have been argued. Thus, he has not even made out a prima facie claim of ineffective assistance of counsel under the first prong in this regard, and he has not demonstrated prejudice under the second prong because we cannot evaluate whether defendant was prejudiced by his counsel's failure to argue unidentified mitigating factors.
For all of the above reasons, defendant was not entitled to an evidentiary hearing because he must first establish a prima facie case of ineffective assistance of counsel. He has not done so because he has not demonstrated that he was prejudiced by any of his counsel's alleged failures to investigate, to file motions, and to argue mitigating factors.
Last, defendant contends that he is entitled to withdraw his guilty plea because it was a product of coercion and he is innocent of the crimes to which he pled guilty. Withdrawal of guilty pleas is governed by State v. Slater, 198 N.J. 145 (2009). Defendant contends that he is entitled to withdraw his guilty plea because he repeatedly told his attorney that he was innocent of the crimes, but the attorney failed to respond to his written requests to file motions and conduct investigations prior to the plea cut-off date. Without those actions having been taken, defendant alleges that he was afraid to go to trial with an attorney who had not adequately investigated his case even though he had been adamant that he would not accept a plea prior to the plea cut-off date.
Also, he did not have the benefit of the transcripts of his co-defendant's plea allocutions to evaluate the strength of the case against him prior to entering a plea. He does not describe how anything he learned from those plea transcripts would have led him to reject the plea offer on the cut-off date.
He also alleges coercion in that his attorney "guaranteed" that he would be found guilty and perhaps be incarcerated for life. He alleges that his attorney said, "No way [defendant] would win" and "Take it or you will never come home."
At his plea allocution, defendant testified that he understood everything written on each page of the plea form; he had a chance to ask his attorney any questions about it; he read and understood all of it; and he had initialed and signed the bottom of the plea form. He understood that his guilty plea ended the prosecution and that he was abandoning certain constitutional rights in pleading guilty. He stated that he was satisfied with the services of his attorney and that there was nothing that he felt was "not right or out of order about what [he was] doing now."
Defendant admitted at the plea hearing that he committed two robberies on August 26, 2005. He described his crime as follows:
Well, I had possessed a BB gun and went into the European [Bake House] and proceeded to rob the people, the employees that were there, and then hours - I went to the Quick [Chek] with the same BB gun and proceeded to rob the people in the store there too.
Defendant gave further details of each crime upon questioning from his attorney. He admitted that he was with the juveniles at the time the crimes were committed. The judge found a factual basis for the plea.
In considering an application to withdraw a plea, the court must consider the application "in light of the competing interests of the State and the defendant." Slater, supra, 198 N.J. at 155. The State's strong interest in the finality of pleas "'is in having criminal wrongdoers account and in the finality of that accounting.'" Ibid. Victims of an offense too have an interest in the finality of criminal proceedings. Ibid. Of course, "defendants are entitled to 'fairness and protection of basic rights.'" Ibid. In order to withdraw a guilty plea after sentencing, the defendant must demonstrate that a "'manifest injustice'" will occur if he or she is not permitted to withdraw his or her plea. Id. at 156. The issue is committed to the sound discretion of the court. Ibid. The burden rests upon the defendant to overcome the "'formidable barrier'" created by the trial court's findings during a plea hearing. Ibid. "A 'whimsical change of mind' . . . is not an adequate basis to set aside a plea." Id. at 157.
To justify withdrawal of a plea, the defendant must present evidence with respect to the following inquiries:
(1) Has the defendant asserted a colorable claim of innocence?
(2) What are the nature and strength of defendant's reasons for withdrawal?
(3) Was the plea entered as part of a plea bargain?
(4) Would withdrawal of the plea result in unfair prejudice to the State or unfair advantage to the accused? [Id. at 158-61 (emphasis removed).]
Under the first inquiry, "[d]efendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Id. at 158 (citations omitted). Courts "should simply consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." Id. at 159. Defendant has professed his innocence and relies on inconsistencies in the statements of the victims, eye witnesses, and his co-defendants. Thus, his claim arguably rests on particular facts that may have impeached the credibility of his co-defendant's testimony.
With respect to the second inquiry, defendant has not demonstrated that he was "misinformed . . . about a material element of the plea negotiation," id. at 159; that he was not informed and did not understand the direct, penal consequences of the plea, ibid.; that his "reasonable expectations under the plea agreement were not met," ibid.; or that a "defense 'was forgotten or missed' at the time of the plea," id. at 160. "[E]fforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons." Ibid. "In general, the longer the delay in raising a reason for withdrawal, or asserting one's innocence, the greater the level of scrutiny needed to evaluate the claim." Ibid.
Here, defendant waited more than a year after sentencing to file his application for withdrawal of his plea. His reasons for withdrawing the plea are not strong; he was aware of the defenses prior to sentencing; and he could have moved to withdraw his plea at that time. Thus, he has not credibly demonstrated that his defense based on the co-defendant's lack of credibility was forgotten or missed at the time of the plea.
As to the third inquiry, defendant's plea was entered as part of the plea bargain, rather than as an open plea. Defendant bears a heavier burden in seeking to withdraw such a plea. Id. at 160. However, this factor is not given great weight in the balancing process. Id. at 161.
As to the fourth inquiry, the State has not demonstrated prejudice under this prong in the form of a lost witness, a faded recollection, or lost evidence. Ibid. However, the State's efforts leading up to the plea may be considered by the court, although this is not entitled to great weight. Ibid.
The PCR judge denied defendant's application to withdraw his plea, finding as follows:
I read that before I heard from you, Mr. Kossup. There are all these things in the record from the plea to the PSI to the sentence. Every time [defendant] is on the record and has a chance to say anything, right up until his sentence, there is no indication at all that this is someone who has any concern about his being responsible. Nothing at all to indicate that there's any claim of innocence. That doesn't come until we get to the PCR. And yet the defendant says I had no intention to plead guilty and I'm innocent. That doesn't mean that we now conduct a hearing. If that were the case we would conduct a hearing in every PCR application. But the record, you know, totally contradicts that - - that posture. He repeatedly maintained his guilt. He repeatedly gave every indication that he committed these crimes. And there's certainly nothing to indicate that he had no intention of pleading guilty. In fact, everything in the record shows quite clearly just the opposite, and that is that he committed the crimes and he wanted the guilty plea, and in light of his prior criminal record, which was rather substantial, both juvenile and adult, he had a plea agreement that was very favorable, so I'm not persuaded that there's any basis to grant the application for a post conviction relief based on any of the grounds that have been presented to far.
Thus, the judge found that defendant had not made a colorable claim of innocence. All that was before him was evidence with which his trial attorney could cross-examine the witnesses and possibly impeach their testimony. Without a colorable claim of innocence, defendant cannot demonstrate that a manifest injustice has occurred as a result of the PCR judge's denial of his application to withdraw his plea. As a result, there is no merit to this contention on appeal.