August 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER DEASE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-01236.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2011
Before Judges C.L. Miniman and LeWinn.
Defendant appeals from the December 18, 2009 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted along with co-defendant Taurean Nixon for: first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) or (2); first-degree conspiracy to commit multiple crimes including and relating to the attempted murder, N.J.S.A. 2C:5-2; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); second-degree burglary, N.J.S.A. 2C:18-2; third-degree criminal restraint, N.J.S.A. 2C:13-2; first-degree robbery, N.J.S.A. 2C:15-1; third-degree terroristic threats, N.J.S.A. 2C:12-3(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and third-degree receiving stolen property, N.J.S.A. 2C:20-7. Pursuant to a negotiated plea agreement, defendant pled guilty to first-degree robbery and second-degree burglary. The State recommended a sentence of concurrent twelve-year terms of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).
At his plea hearing, the following colloquy ensued regarding defendant's factual basis for the burglary charge:
Q Did you enter the home of [the victim]?
Q And did you do so with the intent to commit a theft?
Q And did you or another who you were doing this with display a deadly weapon?
Q Did you have permission to be there?
Q You weren't invited by anyone there, right?
Regarding the robbery charge, defendant gave the following factual basis:
Q Drawing your attention to count number seven which is robbery in the first degree, . . . at the house of [the victim], did you take property, you or another that you were doing this with, caused [sic] bodily harm to him?
Q And that was a stab wound to his upper torso?
Q And you took property, is that correct?
Q And that property did not belong to you?
Q You did not have permission or authority to take it?
Q Do you remember giving a statement to a detective in this matter . . . ?
Q And are the answers that you gave to him . . . truthful?
Q You swore on the Bible they were truth [sic] testimony, correct?
Q You were asked if you stabbed [the victim]?
Q You said no?
Q Is that accurate?
Q You also indicated that you did not see [anyone else] stab [the victim]?
Q But you went out to an ATM machine, right?
Q When you went out to the ATM machine had you seen blood on the victim?
Q So he had been stabbed before you went out?
A Not sure.
Q Did you see him get stabbed . . . ?
A No, I didn't.
Q You did not stab him?
Q Were you in another room at the time?
A I'm not sure where I was at. I didn't even know he was stabbed at the time. I found out after I got to the police station.
Q Because of the blood?
Q Well, you knew he was hurt because there was blood, right?
Q Then you guys put him into a closet, right?
Q He was hog tied, right?
Q Both of you were in the room, right?
Q So, you didn't see, did you ever see the knife?
Q Did you ever talk to [co-defendant] about this?
Q Okay, but there was a point where he did not have blood on him and then there was a point where there was blood, correct?
Q Okay, you did not stab him?
On February 3, 2006, defendant was sentenced to a term of ten years on the burglary count and a concurrent term of twelve years on the robbery count. He did not appeal his convictions or sentence. On June 8, 2009, defendant filed his PCR petition, alleging that his sentence for first-degree robbery was illegal and he should have been sentenced for second-degree robbery. Counsel was appointed who filed a supplemental petition, alleging: (1) defendant's plea "was not knowingly voluntary or intelligent"; (2) the elements of first-degree robbery "were not elicited during the time of the plea"; and (3) defendant's sentence is "excessive because he should have been sentenced only as a second[-]degree robbery."
On December 18, 2009, the same judge who had presided over defendant's plea and sentence reviewed the transcript of the plea hearing and concluded that there was no "inaccurate or insufficient factual basis" for defendant's plea. The judge noted that defendant's factual basis constituted "an armed robbery . . . . Theft while armed threatening the use of force is an armed robbery. . . . [H]e noticed that there was in fact blood . . . and while he did not see the stabbing . . . [he] knew [the victim] was hurt because there was blood." Therefore, the judge concluded, there were "sufficient grounds to sustain the plea by way of a factual basis[,]" and denied relief without a hearing.
On appeal, defendant raises the following contentions for our consideration:
THE FACTUAL BASIS GIVEN BY DEFENDANT AT HIS RETRAXIT PLEA WAS INSUFFICIENT TO SUPPORT HIS CONVICTION FOR ARMED ROBBERY.
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
THE PCR COURT ERRED IN NOT GRANTING PETITIONER AN EVIDENTIARY HEARING ON HIS PCR PETITION.
In a supplemental pro se brief, defendant contends:
POINT I. THE FACTUAL BASIS GIVEN BY THE DEFENDANT AT HIS RETRAXIT PLEA WAS INSUFFICIENT TO SUPPORT HIS CONVICTION FOR ARMED BURGLARY.
Having reviewed these contentions in light of the record and the controlling legal principles, we discern no basis to reverse the order denying PCR.
N.J.S.A. 2C:15-1(b) provides that robbery is a crime of the first degree "if in the course of committing . . . theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." Here, defendant did not personally possess or use a "deadly weapon" to injure the victim. His co-defendant, however, did both. Defendant's admissions at the time of his plea established more than just his awareness of his co-defendant's stabbing and the victim's injury, however. He acknowledged that he participated in binding the bleeding victim and placing him in a closet. Those efforts demonstrate an intention to assist in the attempt to exacerbate the impact of the stabbing and cause serious bodily injury by preventing the victim from seeking medical assistance.
Defendant's liability for first-degree robbery stems from his status as an accomplice to his co-defendant. N.J.S.A. 2C:2- 6(b)(3) provides that "[a] person is legally accountable for the conduct of another person when . . . [h]e is an accomplice of such other person in the commission of an offense." An individual will be found "guilty of a crime under a theory of accomplice liability . . . [where] he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Fair, 45 N.J. 77, 95 (1965)). "An accomplice is . . . guilty of the same crime committed by the principal if he shares the same state of mind as the principal." State v. Whitaker, 200 N.J. 444, 458 (2009).
On appeal, defendant contends that his factual basis for first-degree robbery was insufficient "[g]iven [his] protestations of innocence regarding the weapon and the serious bodily injury to the victim . . . ." We do not read his factual basis to constitute "protestations of innocence." Rather, defendant clearly acknowledged that at one point the victim was not injured and subsequently he was; defendant knew the victim was injured not only because he saw blood but also because he helped his co-defendant "hog tie" the obviously injured victim in a closet. We are satisfied that defendant's factual basis established that he shared his co-defendant's intent to inflict serious bodily injury on the victim during the course of the theft. N.J.S.A. 2C:15-1(b); State v. Weeks, 107 N.J. 396, 405 (1987).
The gravamen of defendant's claim of ineffective assistance of counsel is that his attorney should have "realized that defendant's professed conduct did not meet the statutory elements" of first-degree robbery. Having rejected defendant's contention that he gave an insufficient factual basis to sustain a first-degree robbery conviction, we find no merit to this claim.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.
The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. See State v. DiFrisco, 137 N.J. 434, 456-57 (1994) (adopting the test in Hill v. Lockhart with respect to "challenges of guilty pleas based on ineffective assistance of counsel").
Here, defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. Therefore, he was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). The issue raised in defendant's pro se submission on appeal is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
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