January 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS HOAG, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 voluntariness of his plea in court, the judge found that defendant had not met his burden.
The judge also considered defendant's contention that his sentence was excessive because of the dissimilarity between his sentence and that of his co-defendant. Judge Theemling pointed out that, during the plea hearing, defendant admitted he was the main perpetrator throughout the criminal activity. Consequently, the judge found the sentence was not manifestly or grossly disparate because defendant had played a greater role in the crime, had a prior felony conviction, and was on parole at the time of the crime. This appeal followed.
On appeal, defendant presents the following contentions for our consideration:
POINT I - THE PCR COURT ERRED IN MAKING FACTUAL FINDINGS WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING.
A. FAILURE TO HOLD A HEARING REGARDING TRIAL COUNSEL'S FAILURE TO FILE A NOTICE OF APPEAL.
B. FAILURE TO HOLD A FACTUAL HEARING ON DEFENDANT'S CLAIM OF EXCESSIVE AND DISPARATE SENTENCING.
C. FAILURE TO HOLD HEARING ON
DEFENDANT'S OTHER CLAIMS.
The relevant principles are well-settled. Post conviction relief constitutes "New Jersey's analogue to the federal writ of habeus corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits is generally entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 463. Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), cert. denied, 162 N.J. 199 (1999).
We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, defendant must first 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). Next, defendant must show that his attorney's deficient performance prejudiced his defense. Ibid. Even if counsel was ineffective, under the second prong, prejudice is not presumed and must be proven by the defendant. Id. at 60-61.
To justify withdrawing a guilty plea premised on ineffective assistance of counsel, defendant must satisfy a modified Strickland standard.
When a guilty plea is part of the equation, . . . a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases" and (ii) "that there is 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. Nunez-Valdez, 200 N.J. 129, 139 (2009)(quoting State v. DiFrisco, 157 N.J. 434, 457 (1994)).]
Moreover, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, -- U.S. --, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
Furthermore, in addressing a withdrawal of a guilty plea, our Supreme Court has set forth the following standard:
[T]rial court judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (i) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[State v. Slater, 198 N.J. 145, 157-58 (2009).]
We have carefully considered defendant's arguments in light of the applicable law, and we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Theemling in his December 3, 2009 oral decision. We add the following comments.
Here we find that Judge Theemling did not abuse his discretion by denying the PCR petition without a hearing. The record shows that defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. Rather, defendant provided mere bald assertions of counsel's ineffectiveness, which are not enough to show that counsel engaged in any legally deficient act or omission. State v. Cummings, supra, 321 N.J. Super. at 170. By way of example, defendant certified that his defense counsel "was ineffective in failing to file a direct appeal of my conviction, even though I believed I had grounds for an appeal." Defendant makes no claim that he asked trial counsel or the Office of the Public Defender to file an appeal and provides no correspondence to his attorney or the Public Defender's office requesting an appeal be filed during the many months between his sentencing and his PCR petition. Furthermore, as the judge pointed out, defendant failed to express how or why, but for the allegedly deficient acts of defendant's counsel, the results would have been different.
Nor has defendant presented any supporting documentation or facts tending to show that he would not have pled guilty and would have insisted on going to trial. Pursuant to Rule 3:21-1 "[a] motion to withdraw a plea of guilty . . . shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." At no time before or after the sentence did defendant file a motion to withdraw his plea. Instead, eighteen months after pleading guilty, defendant certified that he was innocent, without providing any facts or evidence to support this assertion.
We agree with the PCR judge that this vague, belated declaration of innocence, without any additional explanation or support, is not enough to overcome the three sworn admissions at the guilty plea and the sentencing hearings that he was "in fact guilty." In addition, the record refutes defendant's assertion that his counsel forced him to plead guilty. He represented in his plea forms and in sworn testimony before the court that no promises or threats were made to him and that he was entering into the plea voluntarily. Weighing all the Slater factors, we find that defendant failed to carry his burden of proving that his conviction should be set aside. Slater, supra, 198 N.J. at 157-58.
Defendant also argues that his sentence is "illegal" and excessive because he received a much greater sentence than his former co-defendant. We recognize that gross disparity may invalidate an otherwise sound and lawful sentence. State v. Roach, 146 N.J. 208, 232, cert. denied, 519 U.S. 1021. 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Even though a "sentence imposed on [a] defendant falls within the statutory limits mandated for the offense, 'there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators.'" Ibid. (quoting State v. Hubbard, 176 N.J. Super. 174, 177 (App. Div. 1980)). Similarly, a sense of unfairness may arise from the receipt of a lengthier sentence than that imposed upon a more culpable participant in the criminal activity. However, "a sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." State v. Hicks, 54 N.J. 390, 391 (1969).
We agree with Judge Theemling's finding that, where defendant admitted he was the main perpetrator, had a prior felony conviction, unlike the co-defendant, and was on parole at the time he committed the instant crime, he and his co-defendant were not equally culpable and their circumstances were not similar. Thus, the judge correctly found that no disparity existed that would make the sentence unfair or erroneous.