September 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AL-DUQUAN LEE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-03-1441.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Simonelli and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) and motion to withdraw his guilty plea. We affirm.
Defendant was indicted in Essex County for first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), and weapons offenses in conjunction with the shooting death of Terrell Ward on November 2, 2000. When arrested in Union County, defendant had both the firearm used in the shooting and marijuana in his possession. He was charged in two separate Union County indictments, one charging him with various weapons and controlled dangerous substances offenses and the second charging him with certain persons not to have weapons, N.J.S.A. 2C:39-7. Defendant pled guilty pursuant to a plea agreement to aggravated manslaughter, N.J.S.A. 2C:11-4(a) (amended from the murder charge); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); possession with intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7; and possession of a weapon, N.J.S.A. 2C:39-5(b).
Defendant's sentencing was originally scheduled for November 2, 2001. At that time, defendant stated he wished to withdraw his guilty plea, have the case reassigned to another attorney and proceed to trial. The matter was adjourned so the court could be provided with a transcript of the defendant's guilty plea. The matter was rescheduled for January 8, 2002, and the court heard defendant's motion to withdraw his guilty plea.
The attorney who represented defendant at his guilty plea acknowledged defendant's allegation that he told defendant that "if he didn't plead guilty, . . . he'd never see his kids again." Defense counsel stated he did not think he used those words but said that he "did certainly give him a very dismal prospect of what would happen to him if he went to trial." Counsel outlined the State's proofs against defendant, which included identifications of defendant by two uninvolved persons after the victim was shot in the back; the fact that defendant had the murder weapon in his possession when arrested; and that he confessed to the shooting thereafter, and said that this evidence was the basis for his giving defendant the "dismal" prognosis of his prospects at trial. Defense counsel also stated that the Public Defender's Office does not pool "these kinds of proceedings out to other lawyers" and so, he was there at the direction of his office, "with [his] office fully aware of . . . whatever potential conflict there may be[.]"
At the hearing, defendant stated his attorney told him he would never see his children again and forced him into making statements at the time of his guilty plea. He stated he did not wish to be represented by the attorney because the attorney had failed to do certain things he requested and that they argued all the time. Defendant said he felt he was "better off going to trial than have him as my lawyer." The court engaged in the following colloquy with defendant:
COURT: Mr. Lee, are you prepared --will you -- are you, therefore, prepared to hire your own attorney?
DEFENDANT: Unfortunately, no, sir.
COURT: Are you prepared to represent yourself at the time of trial?
DEFENDANT: If so, I would like to have a pool attorney from the system.
COURT: You're not entitled to a pool attorney, Mr. Lee. I don't control the appointment of counsel.
DEFENDANT: Yes, sir.
COURT: My job is to ensure that you have a competent attorney assigned to represent you. That is Mr. Soffer. If in fact, thereafter, you do not wish to be represented by Mr. Soffer, I cannot order a new attorney for you. Your choices are either to hire your own attorney or go without an attorney. So do you understand that, sir? DEFENDANT: Yes, sir.
COURT: Anything else, with regard to your motion?
DEFENDANT: I would just like an attorney that's going to be there and fight for me.
At no time did defendant request an adjournment for the purpose of obtaining an attorney or to prepare his own defense.
The trial court then reviewed the statements defendant had given under oath in response to his questions at the plea hearing, which included an admission that he knew the victim and shot him in the back from close range. Defendant stated he gave the responses his attorney told him to give and was confused at the time. He said, "I know that I could not have committed such a crime -- such as occurred. I would -- I was never a violent person. I was never a person to carry guns and try to harm another person." The court denied the motion.
Defendant was sentenced to twenty-five years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter charge. He received concurrent terms on the remaining counts: seven years on the possession of a weapon for an unlawful purpose count, five years with a three year period of parole ineligibility on the drug offense, and a five year term on the remaining weapon possession count. Appropriate fines and penalties were imposed and defendant received jail credit of 396 days.
Defendant filed a notice of appeal, challenging only his sentence, that was heard on an excessive sentencing calendar. We affirmed his sentence by order dated May 5, 2003. His petition for certification was denied, State v. Lee, 177 N.J. 574 (2003).
On March 1, 2006, defendant filed his first petition for
PCR.*fn1 After the PCR was referred to the Public
Defender's PCR unit, it was withdrawn in favor of a Blakely*fn2
motion. The trial court noted that since Blakely was not
given retroactive application and defendant's sentence was affirmed on
appeal prior to its decision, he was not entitled to resentencing on
that basis. See State v. Natale, 184 N.J. 458, 494 (2005) (applying
holding to defendants with cases on direct appeal as of the date of
decision and to those defendants who raised Blakely claims at trial or
on direct appeal). The trial court denied defendant's motion on June
19, 2007. Defendant filed a notice of appeal from the denial of his
motion to withdraw his guilty plea and subsequently withdrew the
appeal in April 2009.
On May 12, 2009, defendant filed another petition for PCR in which he asked to withdraw his guilty plea on the grounds that his attorney and the court "failed to assure that he was aware of its penal consequences prior to accepting it." At oral argument, his PCR counsel argued that, in addition to this alleged deficiency in trial counsel's performance at the time of plea, appellate counsel provided ineffective assistance by failing to raise this issue on appeal despite the fact that State v. Freudenberger, 358 N.J. Super. 162 (App. Div. 2003), was decided approximately two months before oral argument of the appeal. Citing State v. Johnson, 182 N.J. 232 (2005), the PCR court noted that defendant was required to show the materiality of the failure to advise him of NERA's mandatory period of parole supervision. See id. at 242 n. 3. Defendant did not make any assertion that if he had been told about the mandatory parole supervision under NERA, he would not have pled guilty. When asked what relief defendant sought, his PCR counsel stated, "really what he is looking for is a plea agreement that -- that reflects his involvement and his culpability in this crime[.]" When questioned directly by the court, defendant stated, "I don't want to risk going to trial and get 30 years to life."
The PCR court accepted defendant's argument that his petition should be considered despite the fact that it had been filed more than five years after his conviction. The court also modified defendant's sentence to merge his conviction on possession of a weapon for an unlawful purpose with his conviction on aggravated manslaughter and, in a written opinion, denied the petition.
In this appeal from the denial of his PCR petition, defendant presents the following arguments:
COUNSEL'S LACK OF APPLICATION TOWARD MITIGATION OF DEFENDANT'S SENTENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF POINT II
DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA BECAUSE THE NATURE AND STRENG[T]H OF HIS CLAIM OUTWEIGH THE STATE'S INTEREST IN PRESERVING THE PLEA POINT III
APPELLATE COUNSEL'S FAILURE TO RAISE OR PRESERVE AN ARGUMENT ON DEFENDANT'S DENIAL OF MOTION TO WITHDRAW HIS PLEA CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF After carefully reviewing the record and briefs of counsel, we are satisfied that none of these arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05 N.J. 42 (l987). We are satisfied that defendant has failed to meet these requirements.
First, defendant's argument that he was denied the effective assistance of counsel because his trial counsel failed to argue at sentencing that certain mitigating factors applied is procedurally barred as this argument could have been raised on direct appeal. R. 3:22-4(a). Defendant argued that his struggle with controlled substances warranted the application of N.J.S.A. 2C:44-1(b)(3) (strong provocation) and that N.J.S.A. 2C:44-1(b)(5) (victim induced or facilitated its commission) applied because the victim had shot defendant five years earlier and fired a weapon at him days earlier. Neither of these arguments have any substantive merit.
Second, as the PCR judge observed, defendant was not entitled to any relief based upon the failure to advise him prior to his guilty plea of the additional parole supervision mandated by NERA unless he demonstrated the materiality of that omission. See Johnson, supra, 182 N.J. at 242 n.3. It was clear from the PCR court's colloquy with both defendant and his counsel that defendant failed to satisfy the materiality requirement.*fn3
Finally, because there was no merit to arguments based upon the failure to advise him regarding the NERA mandatory parole supervision, his claim of ineffective assistance of appellate counsel based upon the failure to make the corresponding argument must fail as well.