August 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT.
ANTHONY R. BEAM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 05-11-1974 and 05-12-2282.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 26, 2011
Before Judges Sabatino and C.L. Miniman.
Defendant Anthony R. Beam appeals from a final order denying his motion for post-conviction relief (PCR) in connection with his conviction for second-degree robbery, contrary to N.J.S.A. 2C:15-1, charged in Indictment No. 05-11-1974; and fourth-degree shoplifting, contrary to N.J.S.A. 2C:20-11b(1), charged in Indictment No. 05-12-2282. He was sentenced to a term of five years on the robbery conviction, subject to the parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to eighteen months on the shoplifting charge to run concurrently with the five-year term. Both charges were to be served consecutively to time then being served on a third indictment. We affirmed his convictions and sentences on both indictments by order following argument on an Excessive Sentence Oral Argument calendar. State v. Beam, No. A-4316-06 (App. Div. Dec. 11, 2007). We now affirm the denial of PCR.
Indictment No. 05-11-1974 charged defendant with committing a theft on August 14, 2005, in the City of Hackensack, during which he "use[d] force upon Vladimir Aste and/or did inflict bodily injury upon Vladimir Aste." Indictment No. 05-12-2282 charged defendant with shoplifting on September 13, 2005, at the ShopRite in Hackensack when he took merchandise with the intention of depriving the merchant of its possession without paying the full retail value of over $200. Defendant pled guilty to both offenses on October 2, 2006.
When he entered his guilty plea, defendant testified that he had sufficient time to discuss the matter with his attorney, who answered all of his questions. He expressed that he was satisfied with her legal services and that he was pleading guilty voluntarily. Moreover, he denied that anyone had threatened him or forced him in any way to plead guilty. He acknowledged being aware of all of his constitutional rights and understood that he was surrendering them by pleading guilty. He understood that robbery was a second-degree crime subject to a jail term between five and ten years, and that the State was recommending five years. He acknowledged that NERA applied, which would require that he serve eighty-five percent of the second-degree sentence before becoming eligible for parole. He also understood that shoplifting carried a jail term of up to eighteen months and understood that both sentences would be consecutive to the sentence he was then serving. Finally, he expressed that he understood that the robbery charge carried a three-year term of parole supervision. He further acknowledged the consequences of violating parole and the potential exposure to a term in excess of five years if he did so.
As a factual basis for a plea, defendant testified that he was at the Pathmark in Hackensack on August 14, 2005, where he took merchandise and placed it into his cart. He then pushed the cart out of the store without paying for it. As he was attempting to leave, he was confronted by a security guard and, at that point, he "[go]t into a physical altercation with the security . . . officer." His counsel then asked:
Q. And the security guard alleges injury in this case. Do you accept that as true with the documents that we've seen?
Defendant's counsel asked to have a moment with her client after which an off-the-record discussion occurred. When then asked if he accepted the reported injury as true, defendant responded yes.
Defendant also testified that he was at the ShopRite in Hackensack on September 13, 2005, when he took or carried away property, food, or merchandise that did not belong to him, and admitted that the amount of the merchandise exceeded $200. On cross-examination by the prosecutor, defendant admitted that he knew the security guard was named Vladimir Aste. The judge found this testimony to be a sufficient factual basis for the guilty pleas and scheduled sentencing in the future, at which time the judge sentenced defendant in accordance with the plea agreement.
In defendant's pro se petition for post-conviction relief, he alleged that his lawyer deceived him as follows:
[S]he drew up a document[,] said it was the prosecutor[']s office. If I didn't cop out I would receive 411/2 years. She also got me to sign my plea based on the fact that she would appeal cert[ai]n aspects of my case, she hasn[']t done so to this date. There are even more factors th[a]n this[.] I have all the documents to prove it.
At some point subsequent to the filing of the petition, additional issues were presented to the PCR judge, but the only issues before us relate to the factual basis for the plea and the claimed coercion exerted by his attorney.
The PCR judge issued a written opinion on February 27, 2009, in which he disposed of the issues that were presented to him. With respect to the issues before us, the judged recited defendant's allegations as follows:
[Defendant] claims that when pleading guilty in his own case, he did not make any admissions regarding the details of the victim's injuries. Instead, he contends that after he left Pathmark he became engaged in a physical altercation with a security guard. However, [defendant] alleges that when counsel asked her client if he accepted as true the documents that alleged the Pathmark security guard's injuries, he initially replied no. He alleges that counsel then asked for a moment and when she came back on the record, suddenly her client agreed that he did accept the documents that alleged the guard's injuries as true. [Defendant] argues that he did not state in any way what injuries were sustained.
[Defendant] now claims that the victim was barely injured. He claims that the alleged victim went to the Immedicenter, not the Emergency Room, and was diagnosed with an elbow strain. [Defendant] contends that his work record indicates that he worked until 9:58 p.m. that day.
As summarized by the judge, defendant also claimed: that his attorney deceived him and fabricated a document in which she threatened him with 411/2 years in state prison if he did not plead guilty. It is asserted that his trial attorney also coerced him into signing the plea forms based on the fact that she would appeal certain aspects of the case, yet has failed to do so. Therefore, his plea was not knowingly, intelligently, or voluntarily given. Therefore, [defendant] requests an evidentiary hearing and asks that he be able to further explore these arguments with his attorney.
After reciting the State's responses to these contentions and the legal analysis to be applied, the judge found that there was a sufficient factual basis to accept defendant's plea to second-degree robbery and that each of the elements of robbery, as defined in N.J.S.A. 2C:15-1, has been established. In doing so, the judge noted that the victim's medical records, which had been provided to him as part of defendant's appendix, established that the victim's elbow was injured in the altercation, that he sustained a left elbow sprain, and that apparently a week after the incident he was still experiencing persistent discomfort when fully extending his arm, and that as a result he was prescribed pain medication and advised not to return to work for 2 days.
Thus, the judge found that bodily injury had been established and there was no factual or legal dispute about it. Even had there not been bodily injury, defendant exerted force, as he admitted to engaging in a physical altercation with the victim. The judge found that defendant's plea counsel was effective in assisting him during the plea proceedings.
The judge also rejected defendant's allegation that his counsel coerced him into pleading guilty, specifically finding that "defendant entered his plea voluntarily, and that defendant gave his plea with a sufficient understanding of the nature of the charges and the consequences flowing from the plea." With respect to the forty-one and one-half year exposure at sentencing, the judge recall[ed] that based on defendant's prior record he faced the possibility of receiving an extended term if convicted. Indeed, trial counsel would have been remiss if she failed to advise defendant of his maximum possible exposure if he elected to proceed to trial and should he be convicted on all three indictments.*fn1
The judge also found that not only was counsel not ineffective but that defendant had not established that he had been prejudiced by counsel's assistance. The negotiated plea was favorable despite the presence of numerous aggravating factors. The charges of which defendant was here convicted were his tenth and eleventh indictable convictions. He had thirty-five known arrests and a history of marijuana and cocaine use. In light of that, his "defense counsel was able to negotiate a most favorable plea agreement with the State." Thus, defendant was not prejudiced in any way by counsel's performance. Based on these findings, the judge denied PCR. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE
CLAIM OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED AS TO TRIAL COUNSEL'S COERCING DEFENDANT TO PLEAD GUILTY TO ROBBERY.
POINT II - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE
CLAIM OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED AS TO TRIAL COUNSEL'S PERMITTING DEFENDANT TO PLEAD GUILTY TO AN INADEQUATE FACTUAL BASIS REGARDING THE ROBBERY CHARGE.
In reviewing the disposition of a petition for PCR, we owe no deference to the judge's legal conclusions, but we do give deference to his or her factual findings that are "supported by adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (internal quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
In Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee embodied in the Sixth Amendment of effective assistance of counsel for every criminal defendant. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, the defendant must demonstrate that the professional errors were so prejudicial as to deprive him of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).
When a defendant seeks PCR on a claim of ineffective assistance of counsel following a guilty plea, he or she must show deficient performance and "'a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Jack, 144 N.J. 240, 248 (1996) (internal quotation marks omitted).
We begin with defendant's claim that his counsel was ineffective in permitting him to plead guilty on an inadequate factual basis on the robbery charge. The predicate for this ineffective assistance claim simply does not exist. Defendant testified that he became engaged in a physical altercation with the security guard. The statute provides:
A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree. [N.J.S.A. 2C:15-1a (emphasis added).]
The phrase "or uses force" includes situations without threat or injury, such as the "blindside muggings that are typical in many purse-snatchings." State v. Carlos, 187 N.J. Super. 406, 412 n.1 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983). Merely pushing a victim aside is sufficient to constitute "force." State v. Williams, 289 N.J. Super. 611, 617 (App. Div.), certif. denied, 145 N.J. 375 (1996). Thus, it was irrelevant to the sufficiency of the factual basis for the plea whether the victim was injured or not. As a consequence, defendant's counsel did not provide ineffective assistance to defendant during the plea allocution.
We also reject defendant's claim that his plea counsel forced him to plead guilty to robbery. That claim is clearly belied by his testimony at the plea with respect to the voluntariness of his plea and his satisfaction with counsel's performance. As the PCR judge noted, counsel would have been remiss if she did not apprise defendant of the total sentencing exposure he faced. Cf. State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.) (finding ineffective assistance of counsel based on defense counsel's "gross misadvice of sentencing exposure"), certif. denied, 174 N.J. 544 (2002). The PCR judge found that defendant was extended-term eligible under N.J.S.A. 2C:44-3a, and defendant does not dispute this finding.
The maximum sentence that could have been imposed as an extended term for second-degree robbery was twenty years. N.J.S.A. 2C:43-7a(3). Second-degree eluding was subject to the same extended term. Ibid. Because fourth-degree shoplifting is not subject to the persistent-offender statute, see N.J.S.A. 2C:44-3a, defendant's total exposure was forty-one and one-half years. His counsel was not ineffective in so apprising him.
We also note that, in order to withdraw a plea, a defendant must "present some plausible basis for his request, and his good faith in asserting a defense on the merits." State v. Smullen, 118 N.J. 408, 416 (1990) (internal quotation marks omitted).
That approach logically flows from the entry of a guilty plea because a defendant's representations and the trial court's findings during a plea hearing create a "formidable barrier" the defendant must overcome in any subsequent proceeding. Were it otherwise, trial judges "would automatically [be] require[d] . . . to grant [plea withdrawal] motions, and [would be] strip[ped] . . . of any discretion in the matter. Liberality in exercising discretion does not mean an abdication of all discretion." [State v. Slater, 198 N.J. 145, 156-57 (2009) (citations omitted).]
Defendant has failed to overcome that "'formidable barrier'" here. Ibid.