July 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM MCWHORTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-12-4540.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 21, 2011
Before Judges Carchman and Parrillo.
Defendant William McWhorter appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Charged with six counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a; five counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); one count of second-degree attempted aggravated assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:12-1b(1); two counts of third- and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a; and various weapons offenses, N.J.S.A. 2C:39-4a; N.J.S.A. 2C:39-5b; and N.J.S.A. 2C:39-7, defendant pled guilty, pursuant to a negotiated agreement, to one count of first-degree attempted murder. He was sentenced in accordance with the plea bargain to the agreed-upon twelve-year term of imprisonment, 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. The remaining counts of the indictment were dismissed, and his sentence was made to run concurrent with the sentence he was then already serving. Defendant did not appeal his judgment of conviction.
At the plea hearing, defendant admitted firing a shot from his handgun directly into a group of six police officers investigating another matter in the immediate vicinity with the purpose to aim, strike and kill one of them. During the plea colloquy, defendant testified that he understood his rights and the terms of the plea agreement; that he had sufficient time to consult with his attorney and was satisfied with the attorney's services; and that he was entering the plea voluntarily and knowingly, without any other promises made to him.
Specifically, twice during the plea hearing, counsel and the court expressly referenced the twelve-year term that defendant had negotiated. The judge explicitly repeated the terms of the agreement and asked defendant whether he understood the recommended sentence:
My understanding of that agreement is as follows. In exchange for your pleading guilty here today . . . the prosecutor would recommend to the court that you receive a sentence of 12 years in New Jersey State Prison under the No Early Release Act.
After defendant expressly confirmed his understanding of the plea offer, the judge further asked, "Have there been any other promises or anything else offered to you for you to plead guilty here today?" Under oath, defendant denied any promises beyond the terms expressly mentioned by the court. In addition, defendant confirmed that he reviewed the plea forms with his attorney, understood the terms and answered truthfully in completing the forms. Those plea forms reflected the specific sentencing recommendation of "twelve years NERA."
For the first time at sentencing, defendant asked to withdraw his guilty plea, but did not provide a reason. The judge agreed to postpone sentencing and gave defendant an opportunity to further consult with his counsel. However, as the judge explained the process for filing such a motion, and alluded to the fact that the delay would result in "dead time" given that defendant was already serving the other sentence, defendant indicated that he no longer wished to file the motion, saying, "Yeah, I'll go forward." When the judge then specifically asked defendant if he wanted to be sentenced in accordance with the plea agreement, defendant replied, "Yes."
Defendant filed the instant PCR petition two-and-one-half years later, alleging ineffective assistance of counsel during both plea negotiations and sentencing. In support of his PCR application, defendant submitted a certification stating that he entered the guilty plea on the understanding that he would receive a ten-year sentence with an eighty-five percent period of parole ineligibility. Defendant also argued counsel was ineffective for allowing sentencing to proceed without further consultation with his client and for failing to request a sentence below the negotiated term.
The PCR court rejected all these arguments and denied the petition without an evidentiary hearing.*fn1 The judge found, as a threshold matter, that defendant's petition was procedurally barred under Rule 3:22-3 and Rule 3:22-4 "for failing to
challenge the sentence on direct appeal[.]" The judge also found the petition lacked substantive merit, reasoning that defendant's claim of misadvice by his attorney that he would get a ten-year sentence, rather than a twelve-year sentence, was "directly contradicted" by the plea record. This is because the plea record plainly demonstrated that defendant "clearly knew and understood before pleading guilty and, therefore before sentencing, that he faced a 12-year term of incarceration." Moreover, the record failed to support defendant's claim of ineffective assistance of counsel at time of sentencing. The court noted that despite overwhelming proof of serious crimes, defense counsel managed to convince the prosecution to consolidate six separate counts of attempted murder into one count, to negotiate concurrent sentencing for the unrelated prison term defendant was then already serving, and to secure a sentence in the lower range of the first-degree crime charged.
On appeal from the denial of his PCR petition, defendant raises the following arguments:
I. THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL AS DEFENDANT RELIED ON HIS ATTORNEY'S ERRONEOUS ADVICE REGARDING THE TERMS OF HIS SENTENCE IN ENTERING HIS PLEA.
II. THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF AS DEFENSE COUNSEL'S FAILURE TO CONSULT WITH DEFENDANT AFTER DEFENDANT INFORMED THE COURT BEFORE SENTENCING THAT HE WISHED TO WITHDRAW HIS PLEA CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).
III. THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS HIS ATTORNEY'S FAILURE TO ADVANCE ANY ARGUMENT SEEKING A SENTENCE BELOW THAT CONTEMPLATED IN THE PLEA AGREEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING. (Not Raised Below).
IV. THE PCR COURT SHOULD HAVE GRANTED DEFENDANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.
We are satisfied that none of these issues is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by Judge Natal in his thorough oral opinion of June 19, 2009.