On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-06-1004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2011
Before Judges Reisner and Hayden.
Defendant Thomas Hoag appeals from the December 3, 2009 denial of his petition for post-conviction relief (PCR). Defendant claims that his trial counsel provided ineffective assistance in several instances, including pressuring him into pleading guilty, failing to challenge his co-defendant's statement, failing to file an appeal, and not arguing against his disparate and excessive sentence. For the reasons that follow, we affirm.
A grand jury indicted defendant for first-degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e, and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). As a result of plea negotiations, defendant entered into an agreement to plead guilty to the first-degree armed robbery charge and the State agreed that the remaining two charges would be dismissed. Pursuant to the agreement, at the sentencing the State could request a maximum sentence of twelve years with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and defendant could argue for a lesser sentence.
On January 11, 2008, defendant appeared before Judge Theemling after he had completed the plea agreement forms, in which he expressed his understanding of his plea agreement and waived his right to trial. Testifying concerning the agreement, defendant affirmed that he had not been threatened or coerced to enter into it and that he had had enough time to review the case facts, police reports and statements with his attorney. He also averred that he understood the questions on the plea agreement forms, had sufficient time to review his answers with his attorney, and was satisfied with his attorney's legal representation.
In establishing the factual basis for his guilty plea, defendant admitted that he had forcibly taken drugs and money from the victim by use of a firearm. Next, Judge Theemling again asked defendant if he wished to plead guilty. Defendant acknowledged he did and, in answer to the judge's query, admitted that he was "actually guilty."
On February 22, 2008, the judge sentenced defendant to a term of twelve years with an eighty-five percent parole disqualifier under NERA. In asking for leniency, defendant stated, "I know I was wrong for what I did. I was under the influence and I know that's not an excuse for what I did. . . . I admit my wrongs and I apologize for what I did wrong."
Defendant did not file a notice of appeal. On July 16, 2009, defendant filed a petition for PCR. In his supporting certification, defendant alleged that he had been coerced into pleading guilty by his trial counsel, who told defendant that he would spend less time in jail by entering into the agreement. Additionally, defendant contended that his counsel had been working in concert with the attorney representing his co-defendant to get him to plead guilty. The stated basis for defendant's belief was that his trial counsel had discussed the benefits of defendant's guilty plea in front of the co-defendant's counsel. Defendant also asserted that his attorney failed to challenge a statement given by his co-defendant which implicated defendant as the principal actor. In addition, he alleged that his attorney did not file an appeal even though defendant believed he had grounds for appeal. Counsel was also ineffective, according to defendant, because during the sentencing hearing he failed to present to the court the mitigating factor of the hardship of his incarceration on defendant's wife and children.
Additionally, defendant challenged his sentence as excessive because he received a twelve-year sentence and his co-defendant, who had pled guilty to third-degree armed robbery, received a sentence of five years probation. According to defendant, his co-defendant was a gang member and had a previous criminal record, although he provided no proof for these claims.
On December 3, 2009, in finding that defendant had not presented a prima facie case of ineffective assistance of counsel, Judge Theemling noted that in all his contentions, defendant had failed to prove both prongs of the Strickland*fn1
test. The judge found that all defendant's claims, such as, that counsel recommended taking the plea because defendant would get less jail time, discussed the plea in front of co-counsel, and failed to move to suppress the co-defendant's statement before trial, did not describe legal representation that was deficient or unreasonable. Defendant failed to provide evidence or point to support in the record which would demonstrate that the result would have been different but for the actions of his attorney. The judge pointed out that defendant had given a sworn statement to the police admitting he was at the scene of the crime, and a handgun had been recovered in defendant's home after a consent search, and defendant's relative had contacted the police implicating defendant in the crime.
Moreover, Judge Theemling noted that, in seeking to vacate a plea made pursuant to a plea agreement after sentencing, defendant had a very heavy burden of proof as the court may only permit withdrawal to correct a manifest injustice. In light of defendant's forthright testimony of guilt and remorse, as well as his acknowledgment of the ...