July 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE MULRINE, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-03-0363.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 5, 2011
Before Judges Axelrad and Lisa.
On the day scheduled for trial, defendant pled guilty to first-degree armed robbery and other offenses, for which he is now serving a fifteen-year sentence with an eighty-five percent parole disqualifier and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentence, imposed on May 2, 2003, was entered pursuant to an negotiated guilty plea. Defendant did not file a direct appeal.
Defendant subsequently filed a petition for post-conviction relief (PCR). Counsel was assigned and filed a supplemental brief in support of the petition. Defendant contended that the lack of continuity in assigned counsel resulted in his being denied the effective assistance of counsel. He further argued that his trial counsel's failure to pursue defendant's right to go to trial and present defenses constituted ineffective assistance of counsel. Finally, he argued that he should be allowed to retract his guilty plea because he was not properly advised of the consequences of the plea. After hearing oral argument on January 16, 2009, the judge, who had also accepted the guilty plea and imposed sentence, issued a written opinion and accompanying order on February 20, 2009, denying defendant's petition.
On appeal from that order, defendant argues:
POINT I THE LOWER COURT COMMITTED
REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II DEFENDANT WAS DEPRIVED OF HIS
RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.
These arguments are patently lacking in merit and warrant only limited discussion in a written opinion. See R. 2:11-3(e)(2).
The offense circumstances were as follows. Defendant approached a gas station attendant wielding a hammer. He struck the attendant in the head with the hammer, fracturing his skull. He stole money and gasoline. The gas station attendant provided a partial license plate description matching defendant's, and positively identified defendant from a photograph. When defendant was questioned by the police, he gave a full confession to the crime.
Defendant was indicted for first-degree armed robbery, third-degree aggravated assault, third-degree possession of a weapon for unlawful purposes, fourth-degree unlawful possession of a weapon, and second-degree aggravated assault.
After the indictment was returned on March 19, 2002, defendant was assigned a public defender. In June 2002, his public defender retired. Over the next two months, two other attorneys were assigned to represent defendant. For reasons not revealed by the record, neither of those assignments remained in effect. In August 2002, counsel was assigned and continued to represent defendant until the time of his plea on February 11, 2003. Thus, although defendant characterizes his situation as having been shuffled between four assigned counsel, he actually had only two. The first retired from the Public Defender's Office, after which there was a brief hiatus while substitute representation was being arranged, and that was followed by continuous representation for the next six months leading up to defendant's guilty plea.
The State's plea offer, which was made to defendant's initial counsel, was fourteen years subject to NERA. In his certification in support of his PCR petition, defendant said that he told his first attorney that he "wanted to plead guilty but that [he] just wanted to get a 'good deal.'" He acknowledged receiving the fourteen-year offer, but said he turned it down because his attorney said he would try to negotiate for a better deal.
Ultimately, with no plea agreement having been reached, the case was scheduled for trial and the trial date was set for February 11, 2003. Because the plea cut-off rule generally prohibits negotiated pleas after a case is scheduled for trial, see R. 3:9-3(g), both counsel and the court "camouflaged" the plea, that was clearly negotiated by counsel and approved by the court, under the guise that it was an "open" plea, but with input from the Court as authorized by Rule 3:9-3(c). The offer was fifteen years subject to NERA for robbery, with sentences on the other four counts of the indictment to run concurrent, and with the entire sentence to run concurrent with a sentence defendant was then serving out of Mercer County.*fn1
In the plea colloquy, those terms were explained to defendant, and he confirmed that he understood and accepted them. He also expressed complete satisfaction with the representation he had been provided by trial counsel, and he acknowledged that he was pleading guilty knowingly and voluntarily. He provided a factual basis for the crime, and the judge accepted his guilty plea. He was subsequently sentenced in accordance with the negotiated plea.
Based upon that record, the judge found no basis for ineffective assistance of trial counsel. The judge noted that defendant presented no factual or legal defenses, never intended to take the case to trial, and pled guilty knowingly and voluntarily, with full knowledge of the consequences of the plea. The judge further found that all facts necessary for resolution of defendant's arguments were contained in the record, and there was therefore no basis for an evidentiary hearing.
We agree with this analysis. We therefore reject Point I of defendant's argument, namely, that the court erred in refusing to grant an evidentiary hearing.
In Point II, defendant argues that he was deprived of the effective assistance of PCR counsel. Defendant provides no particular basis for this contention, but relies upon conclusory and speculative assertions that his PCR counsel did not conduct a sufficiently thorough investigation and did not adequately present arguments on his behalf. The record belies these contentions. PCR counsel wrote a thorough and extensive brief on defendant's behalf and presented cogent oral arguments before the court. The record provides us no basis upon which to conclude that PCR counsel's representation was deficient.