August 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES J. ROBERTS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 03-09-1182.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 11, 2011
Before Judges A.A. Rodriguez, Grall and LeWinn.
Defendant appeals from the July 15, 2009 order denying his petition for post-conviction relief (PCR). The gravamen of his claim is error in the denial of relief based on ineffective assistance his attorney provided in negotiations and at sentencing. We affirm.
Defendant waived indictment by grand jury and on September 18, 2003, he pled guilty to an accusation charging him with first-degree armed robbery, N.J.S.A. 2C:15-1; and first-degree carjacking, N.J.S.A. 2C:15-2(a)(1). His plea form notes that the "State will recommend [fifteen] years . . . on each count of [the] accusation. [The] State will argue for consecutive terms. This is a NERA*fn1 . . . case. . . ."
At the plea hearing, the judge engaged in the following colloquy with defendant regarding the recommended sentence:
Q Now you understand that the plea bargain . . . sets forth that . . . they will recommend [fifteen] years in [s]tate
[p]rison each count, the sentence not to exceed?
Q And they will seek to ask the [c]court on your sentencing day to have those terms made consecutive to each other. Do you understand what that means?
Q That means that the State will seek . . . to have you sentenced to [thirty] years total in state prison. Do you understand that?
Q The State is reserving in the plea agreement the right to ask that the [c]court make your sentences consecutive, [fifteen] years on the armed robbery, and [fifteen] years on the carjacking, added together for a total of [thirty] years in prison?
A That wasn't the plea bargain.
Q Well, that's what it says here, sir.
A I thought I was going for --Q The State will argue for consecutive time, and you reserve the right on the day of your sentence to argue for concurrent time?
Q That the [c]court, on sentencing day, impose a [fifteen]-year sentence on the carjacking and a [fifteen]-year sentence on the armed robbery, and allow you to serve them concurrently?
A Yes, [Y]our Honor.
Q So nobody's promised you one way or the other, and the [c]court has not given any indication, what the sentence will be, other than the fact that on each count it will not exceed [fifteen] years. Do you understand that?
A Yes, [Y]our Honor, I understand that.
Q So when you come to court on your sentencing day, you could get [fifteen] years, concurrent, which means the outside date is [fifteen] years; or, when you come to court you could get [thirty] years, or anything in between, [be]cause the [c]court's not bound by giving the [fifteen] years. The [c]court could go lower than [fifteen] years on each of these counts. Do you understand that?
A Yes, [Y]our Honor.
Q Other than those promises and representations, has anybody made any other promises and representations to you?
A No, [Y]our Honor.
Q Now, do you understand, sir, that each of these crimes that you are pleading guilty to, robbery and carjacking, fall[s] under [NERA]?
A Yes, [Y]our Honor, I understand.
Q That's a mandatory period of parole ineligibility. You understand that?
A Yes, I understand that.
Q And in your case, if you get a concurrent term of incarceration, meaning [fifteen] years -- we'll do the math -- that would be [twelve] and three-quarters years, or [twelve] years and [nine] months, before you're eligible to be considered for parole. Do you understand that?
A Yes, [Y]our Honor.
Q And if you get a [thirty]-year sentence, it would be [twenty-five] and a half years, or [twenty-five] years and six months, before you're eligible to be considered for parole. Do you understand that?
Q Yes, I understand that.
Q Did you read all these papers . . . with . . . your attorney's assistance?
A Yes Q And did he answer any questions that you had with regard to the questions?
A Yes, he did.
Q . . . [D]id he read each question to you?
A Yes, he did.
Q And did you understand the questions as he read them to you?
Q And when you answered the questions, did [counsel] circle the answers --A Yes.
Q -- that you gave him?
A Yes, [Y]our Honor.
Q So the answers that are on these sheets are your answers to these questions?
A Right. Yes, [Y]our Honor.
Q You haven't had any medication today, have you, sir?
Q You haven't had any drugs or alcohol . . .; is that correct?
Q Are you satisfied with the advice and counsel that you have received from [defense counsel] in this matter?
A Yes, I am.
Q Do you have any questions for the
[c]court concerning this plea agreement?
Defendant then gave a factual basis, admitting that he went into World Bank and took money by putting employees in fear, telling them he had a bomb in his backpack; when he exited the bank, he used force to commandeer a vehicle from two people to get away.
At the outset of sentencing, the judge indicated that defendant had "filed a motion." Defense counsel stated that he spoke to defendant and he "indicated that he does not want to file the motion to withdraw this guilty plea. He wants to be sentenced today." The judge inquired of defendant if that was "right" and defendant responded, "Yes, sir." Defense counsel then argued that the imposition of consecutive sentences would be improper under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
When offered the right of allocution, defendant stated: "I would like to apologize to the victims. It was a horrible, horrible thing that I did. And I'm going to have to live with that. And I'm really sorry. That's it."
The judge concluded that defendant "conducted himself . . . in a fashion that these are two separate and distinct crimes contemplated and thought out at two separate periods of time. . . . [H]e had a relative drive him to the bank . . . .
[T]he relative drove away, wouldn't participate any longer. . . . [Defendant] chose to prey upon two innocent people . . .[,] attack[ed] a [seventy]-plus-year-old man and his [sixty]-year-old wife seated in their car and assault[ed] them."
The judge then sentenced defendant to two consecutive terms of fifteen years imprisonment subject to NERA.
Defendant appealed his sentence pursuant to Rule 2:9-11. On May 15, 2006, we remanded for reconsideration of the imposition of consecutive sentences and "the overall fairness of the final sentence imposed." State v. Roberts, No. A-3241-03 (App. Div. May 15, 2006). On June 12, 2006, the judge imposed the same sentence, finding that although "the robbery inside the bank and the carjacking outside the bank were in time closely tied, there is a separate and distinct mental state for the commission of the first and . . . second crime[s]." The judge added that "[t]he victims were completely separate and apart and innocent and distinct from one another."
Defendant again appealed pursuant to Rule 2:9-11, and on March 29, 2007, we entered an order affirming the imposition of consecutive sentences but modifying defendant's sentence on armed robbery to ten years, thereby reducing defendant's aggregate term to twenty-five years. State v. Roberts, No. A-0037-06 (App. Div. March 29, 2007). The Supreme Court denied certification. 192 N.J. 294 (2007).
On or about November 21, 2008, defendant filed his PCR petition, asserting ineffective assistance of counsel "at the time of plea and sentencing." PCR counsel was assigned and filed a brief contending that prior counsel: (1) "coerced and cajoled" defendant into pleading guilty by "misleading [him] with respect to the terms of the plea agreement"; and (2) provided ineffective assistance at sentencing by failing to assert mitigating factors including that fact that defendant "cooperated with authorities throughout the investigatory process, . . . [and] voluntarily surrendered to the police."
Defendant filed a certification, contending he was advised that the sentence recommendation "was for [fifteen] years total." He rejected that offer and sought a maximum of ten years. When counsel presented the plea form for his signature, the sentence recommendation "stated in no uncertain terms that, 'State will recommend [fifteen] years . . . .' This is the language that was presented to [him] and confirmed by counsel." In support, defendant pointed to the presence of a period at the end of the sentence, "State will recommend [fifteen] years NJSP[,]" following which is written "on each count of [the] accusation. State will argue for consecutive terms." Defendant contended that language was added after he signed the plea form.
Defendant further certified that "at the time of [his] original sentencing, which was scheduled for October 31, 2003, [he] suffered an episode of paranoid schizophrenia." He asserted that his attorney was aware of that and "should have requested an adjournment. . . . As a result of [counsel's] failure to address [his] specific mental needs, [he] made a bad impression in front of [the judge] . . . that . . . prejudiced [him] once the sentencing ultimately took place on November 14, 2003."
A different judge heard argument on defendant's PCR petition on July 15, 2009. After reviewing the history of defendant's case and discussing the pertinent legal standards, the judge concluded that defendant had failed to make a prima facie case of ineffective assistance of counsel and denied relief without a hearing.
The judge reviewed defendant's plea form as well as the lengthy colloquy in which the plea judge explained the possible imposition of consecutive sentences. Noting that defendant had indicated a limited ability to read and write English at the time of the plea, the PCR judge concluded that the "record contains numerous instances during the plea in which the [c]court on the record explained the potential sentences in detail." This led the judge to find that even if defendant had been "misinformed" by counsel, as he claimed, "the extensive explanations by [the plea judge] rendered the plea knowing and intelligent."
The judge noted further that defendant had filed, and then withdrew, a motion to retract his plea prior to sentencing. The judge summarized his reasons for denying relief as follows:
Therefore, [defendant] is unable to show that but for trial counsel's alleged misconduct, he would have refused to enter a guilty plea and demanded to go to trial. All evidence shows that he was fully informed of the sentencing ramifications and the terms of the plea agreement, and he freely and voluntarily chose to plead guilty to these charges and reaffirmed his desire to plead guilty on the day of sentencing when he withdrew his motion to withdraw his guilty plea. . . . [Defendant's] claims in this regard are . . . unsupported by the record.
The judge rejected defendant's claim that counsel was ineffective for failing to assert mitigating factors at sentence, noting that defendant cited only mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), that he "cooperate[d] with law enforcement officers" by turning himself in and cooperating with the investigation of his offenses. Notwithstanding the judge's finding that this claim was barred by Rule 3:22-5 because defendant's sentence had been reviewed twice by this court, he nonetheless addressed it on the merits. Noting that the sentencing judge had given "heavy weight" to four aggravating factors--two, three, six and nine, N.J.S.A. 2C:44-1(a)(2), (3), (6), (9), the PCR judge concluded that "even if a mitigating factor had been found, it would not have been to the extent as to substantially outweigh the four aggravating factors that would have permitted a sentence in the lower end of the range."
Regarding defendant's claims related to his mental status at the time of sentencing, the judge noted that he had made only "bald assertions" and did not "allege facts sufficient to demonstrate counsel's alleged substandard performance . . . support[ed] . . . through affidavits or certifications by those witnesses possessing personal knowledge[,]" citing State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Finally the judge rejected defendant's contention that the "cumulative effect" of counsel's errors demonstrated ineffective assistance. The judge stated: "When the alleged errors . . . are considered in the aggregate, . . . defendant has failed to . . . show that there's a reasonable probability that but for counsel's alleged unprofessional errors, the ultimate result would have been different." Because defendant had failed to make a prima facie showing of ineffective assistance of counsel, the judge denied his request for an evidentiary hearing.
On appeal, defendant raises the following contentions for our consideration:
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STANDARDS ARTICULATED BY THE COURTS IN STRICKLAND V. WASHINGTON, STATE V. PRECIOSI, AND STATE V. CUMMINGS, UNDER R. 3:22 CRITERIA THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
POINT II THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
Defendant has filed a pro se supplemental brief containing one point heading: "DEFENDANT WAS DENIED POST-CONVICTION RELIEF BASED UPON THE INEFFECTIVE ASSISTANCE OF P.C.R. [SIC] ATTORNEY." He argues that PCR counsel "failed to raise the issues of . . . defendant's mental health diagnosis that [he] has been dealing with since the age of seven . . . years old." Defendant asserts that his pre-sentence report (PSR) "contain[s] some of [his] past and [sic] mental [h]istory."
Review of defendant's PSR discloses a long history of alcohol and substance abuse. The only evidence of any "mental history," however, is defendant's statement to the probation officer that "when he was twenty-six years old he was treated by [Dr.] Whitehead in Evansville, Indiana. Dr. Whitehead diagnosed him with paranoid schizophrenia. . . . [D]efendant stated he did not follow through with any treatment plans."
Defendant was born in 1967; he was, therefore, thirty-six years old at the time of his plea and sentence in 2003. There is nothing in the record to indicate that defendant continued to suffer from, or received treatment for, paranoid schizophrenia after he failed to follow through with such treatment ten years earlier. As the PCR judge noted, defendant's claim that he experienced an episode of this disease in October 2003 is not supported by the record. Under the circumstances, we discern no basis to conclude that PCR counsel was ineffective for failing to pursue this issue.
Having reviewed all of defendant's contentions in light of the record and the controlling legal principles, we are satisfied they lack "sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge James J. Den Uyl in his July 15, 2009 oral decision denying each of defendant's PCR claims on the merits.