March 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THURMAN THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010 - Decided Before Judges Lisa and Sabatino.
Defendant, Thurman Thomas, appeals the dismissal of his petition for post-conviction relief ("PCR"). For the reasons that follow, we affirm.
Defendant pled guilty in March 2004 to an amended charge of second-degree robbery, downgraded from first-degree robbery, N.J.S.A. 2C:15-1. The plea agreement was reached before the completion of jury selection. Consistent with the plea agreement, the trial court sentenced defendant to a custodial term of seven years, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The materials supplied to us on the appeal, including the parties' briefs and the presentence report,*fn1 describe the following pertinent facts. On March 26, 2003, the victim pulled his car into his driveway. Defendant walked up to the car, tapped on the window, and demanded money. He had one hand in his pocket and told the victim that he had just escaped from prison. During this encounter, defendant pulled up his shirt, revealing a scar on his stomach. The victim persuaded defendant to let him go into his house and retrieve some cash. The victim's wife then emerged from the house. The victim then ran into the house, pushing his wife inside and locking the door behind him. Defendant remained outside for awhile, shouting at the victim and imploring him to come out with the money. The victim then called the police and described the assailant, noting in particular the scar. Defendant left the property.
The police soon found defendant in the neighborhood and apprehended him. The police then brought the victim over to defendant. The victim positively identified defendant as the man who had accosted him in his driveway.
Prior to trial, defendant's counsel challenged the admissibility of the victim's identification. The challenge prompted the trial court to schedule a Wade*fn2 hearing on admissibility. The Wade hearing was cancelled after defendant pled guilty.
Defendant appealed his sentence, claiming that it was excessive. We affirmed the sentence, in an order dated December 14, 2005. Certification was denied. State v. Thomas, 186 N.J. 365 (2006).
Defendant filed his first PCR application in June 2007. He subsequently withdrew that application. He filed a second PCR application in February 2008. The application, as amplified with the assistance of counsel, alleged that defendant's guilty
plea must be vacated because the factual basis for the plea presented to the trial court was inadequate. Defendant further contended that his trial attorney and his counsel on direct appeal were ineffective. Among other things, he maintained that his trial attorney should have insisted upon the Wade hearing being completed before the plea agreement was made. Defendant also pressed several additional arguments in his pro se brief to the trial court.
After hearing oral argument, the judge assigned to the PCR matter*fn3 dismissed defendant's application on both procedural and substantive grounds. This appeal followed.
Defendant's appellate brief raises the following points:
THE PCR COURT ERRED BY FINDING THAT THE DEFENDANT'S ARGUMENTS WERE PROCEDURALLY BARRED BY R. 3:22-2 AND R. 3:22-4.
THE DEFENDANT'S GUILTY PLEA MUST BE VACATED BECAUSE THE TRIAL COURT FAILED TO ELICIT A FACTUAL BASIS FOR THE PLEA.
DEFENDANT'S TRIAL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT.
A. Trial Counsel's Failure to Litigate the Wade Issue Prior to Defendant's Guilty Plea Rendered His Assistance Ineffective.
B. Defendant's Appellate Counsel Rendered Ineffective Assistance of Counsel by Failing to Raise Any Substantive Issues, Other than Sentencing Issues, On Appeal. (Not Raised Below).
THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPORT HIS REQUEST FOR A REVERSAL OF HIS CONVICTION AND SENTENCE.
Having afforded due consideration to defendant's arguments, we affirm the dismissal of his PCR application, substantially for the sound reasons expressed in the December 26, 2008 bench opinion of Judge Melvin Kracov. We only make a few short observations.
Defendant's claim that the factual basis for his guilty plea was inadequate, and that he should now be afforded an opportunity to vacate his plea almost seven years later, fails on both procedural and substantive grounds.
Procedurally, defendant's attempt to raise the factual inadequacy issue collaterally through the PCR process is improper because he and his attorneys had an ample opportunity to raise it before the judgment of conviction was affirmed on appeal. At no time before defendant's PCR petition did he move to withdraw his plea. He did not raise any problem with the factual basis for his offense at sentencing. Nor was the issue included in his direct appeal, even though it could have been raised. Consequently, Judge Kracov correctly applied a procedural bar to defendant's belated effort to complain about this issue in the PCR process. See R. 3:22-2, -4.
Defendant's attempt to now vacate the plea in a PCR proceeding is also deficient on its merits. Although at the plea hearing the recitation of the factual basis of the attempted robbery could have been more detailed, defendant's later acknowledgment--through counsel at his sentencing--that the facts set forth in the presentence report were correct vitiates any shortcomings in that regard. Moreover, defendant has not presented a colorable claim of actual innocence, which is a key consideration in evaluating a defendant's belated motion to withdraw a plea. See State v. Slater, 198 N.J. 145, 157 (2009). We also cannot ignore the likely prejudice to the State in having to establish its case based upon stale proofs if the case were reopened, assuming that the victim even could be located and would be able and willing to testify.
We also concur with the PCR judge's finding that defendant has not shown that any of his prior counsel were constitutionally ineffective. Courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" State v. Fritz, 105 N.J. 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489, cert. den., 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by, State v. Czachor,
82 N.J. 392, 402 (1980)); see also State v. Echols, 199 N.J. 344, 357-59 (2009). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
We are unpersuaded by defendant's claim that his trial counsel was ineffective for not urging the court to conduct the Wade hearing before a plea agreement was consummated and placed on the record. There is no indication in the record supplied to us that the victim's identification of defendant, which occurred within only a short time after the robbery attempt, was in any way equivocal or was the by-product of undue suggestion. The victim called the police right after he fled into his house. Defendant's scar was a distinctive feature, one which makes the victim's identification all the more reliable.
Even if a Wade hearing had been conducted, there is no reason to believe that the identification would have been found inadmissible under the applicable legal standards. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 154 (1977); State v. Madison, 109 N.J. 223, 232-33 (1988).*fn4 Moreover, if the defendant had lost at the Wade hearing, that would have strengthened the prosecution's position and possibly caused the State to take a harsher approach to the plea negotiations. As it stood, defendant's trial counsel successfully negotiated a downgrade of defendant's offense from first-degree to second-degree robbery, which contained his exposure to a much shorter potential custodial term, an accomplishment that does not bespeak ineffective representation.
The balance of defendant's arguments, including the points advanced in his pro se submission to the PCR judge, which are duly incorporated in the brief of his appellate counsel, lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).