April 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEMETRIUS CARROLL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-02-319 and 04-03-811.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 22, 2011
Before Judges Parrillo and Skillman.
Defendant Demetrius Carroll appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
On Indictment No. 04-03-811, defendant pled guilty to first-degree carjacking, N.J.S.A. 2C:15-2; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4d. He also pled guilty to Indictment No. 04-02-319, charging defendant with third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree resisting arrest, N.J.S.A. 2C:29-2; and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4). In exchange for defendant's pleas, the State agreed to dismiss another second-degree aggravated assault charge in Indictment No. 04-03-811. These offenses involved the November 11, 2003 carjacking of a 1997 Nissan Maxima wherein defendant held a knife to the victim, threatened him and then took his vehicle. Defendant was apprehended two days later in the 1997 Nissan Maxima after he attempted to flee from the arresting officers. Defendant's fingerprints were found on the knife used to threaten the victim during the carjacking.
After appropriate mergers, defendant was sentenced on the carjacking offense to a ten-year term, subject to the eighty- five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent eighteen-month term on the unlawful possession of a weapon offense. On Indictment No. 04-02-319, defendant received a five-year term for resisting arrest, to run concurrently with the sentence imposed for carjacking, and the remaining offenses merged.
We heard defendant's direct appeal on an excessive sentencing calendar, see R. 2:9-11, and affirmed his sentence.
State v. Carroll, A-1528-05 (App. Div. Oct. 17, 2006).*fn1
Supreme Court thereafter denied certification. State v.
Carroll, 189 N.J. 430 (2007).
Defendant filed a timely petition for PCR claiming that his counsel had been ineffective for failing to request a Wade*fn2 hearing and for pressuring him to plead guilty. The PCR judge denied the application, finding defendant's pleas were entered knowingly and freely and that counsel's failure to request a Wade hearing was neither deficient nor prejudicial to defendant. As to the former, the judge specifically mentioned the fact that defendant independently wrote the court expressing his desire to plead guilty:
After all, I had already done a plea cutoff with you. I had already told you all the things that the State's case consisted of, what the State was looking for as far as sentence. And told you you didn't have to take it but, if you didn't take it, I wasn't going to let you take it. And that's why you wrote me the letter. You wrote me the letter and said, "I know I said I didn't want it. Now I want it."
Now, certainly [defense counsel] wasn't in the cell with you when you wrote it to me. So, it doesn't give credence to your argument that he put you in a position where you had no choice but to plead guilty because you had turned down the plea initially.
As far as you shouldn't have pled guilty to carjacking, . . . the sentence that I agreed to give you was the absolute lowest sentence that you could get for carjacking. It's also the lowest sentence that you could have gotten if, instead of pleading to carjacking, you had pled guilty to armed robbery, use of a knife, taking the car, even if it wasn't carjacking, you couldn't have gotten less than 10 years at 85 percent.
In rejecting the remaining claim of ineffective assistance,
the PCR judge stated:
A Wade hearing is not something that you have as a matter of right. There has to be a showing of some impermissible suggestiveness in the identification. I don't remember that ever being brought up. I don't believe that was ever in it. And the fact that, . . . in the Appellate Division decision where they talked about there was an identification on the knife of your print and the fact that you were apprehended in the car that was taken, even if the person isn't sure whether or not it was you, circumstantially the State had a case putting you in the car because you were actually in there and your fingerprint on the knife used to make the threat.
On appeal from that denial, defendant presents the following argument:
We reject this argument and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Vichness's June 24, 2009 oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11- 3(e)(2).
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED AS TO TRIAL COUNSEL'S COERCING DEFENDANT TO PLEAD GUILTY.