February 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH MAROLDA, SR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Payne and Simonelli.
Defendant Joseph Marolda, Sr. appeals from the denial of his petition for post-conviction relief (PCR) grounded on ineffective assistance of trial counsel. We affirm.
The facts of this matter are set forth in State v. Marolda, 394 N.J. Super. 430 (App. Div.), certif. denied, 192 N.J. 482 (2007), and need not be repeated here in detail. The following facts are pertinent to this appeal.
The police had searched defendant's farm pursuant to search warrants and found twenty-eight marijuana plants growing in the cornfield, 154 marijuana plants growing under the trees in the wooded area of the property, a sifter and scale in the shed, dismantled equipment used for growing marijuana indoors, and a safe containing $48,000. Id. at 439. A grand jury indicted defendant for fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10a(3); first-degree possession of more than fifty marijuana plants with intent to distribute, N.J.S.A. 2C:35-5b(10)(a); second-degree conspiracy to possess more than fifty marijuana plants with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(10)(a); and first-degree maintaining or operating a controlled dangerous substance (CDS) production facility, N.J.S.A. 2C:35-4. Defendant entered into an unconditional open plea to the first-degree maintaining a CDS production facility charge. Id. at 433-34. The trial judge imposed a fifteen-year term of imprisonment, with sixty months of parole ineligibility, and imposed the appropriate penalties, fees, and assessments. Id. at 434.
Defendant filed a PCR petition, contending that trial counsel rendered
ineffective assistance in several ways. Defendant first claimed that
trial counsel failed to advise him of the harsher Brimage*fn1
consequences of his plea. Defendant argued that had he known
about those consequences, he would have pled guilty earlier and
received the State's original plea offer of nine years with fifty-four
months of parole ineligibility.
Second, trial counsel failed to discuss the advantages and
disadvantages of defendant testifying at the Miranda*fn2
hearing. Defendant argued that he would have testified that
he was never read his Miranda rights, and that this testimony was of
particular importance because he had not signed any Miranda cards.
Third, defendant believed that Jeffrey Sprang, a part-time police officer and defendant's neighbor, was the confidential informant who had notified the police of defendant's activities, which Sprang had discovered by illegally entering onto the farm. Defendant filed a motion to compel disclosure of the confidential informant's identity. Defendant admitted that the court held a hearing on this issue and held that Sprang was not the confidential informant; however, defendant argued in his PCR petition that the confidential informant's identity should have been disclosed, or trial counsel should have requested further inquiry into Sprang's involvement with the informant.
Fourth, trial counsel failed to seek a conditional plea offer that would have preserved defendant's right to appeal the court's Miranda ruling and denial of his motion to suppress, the confidential informant issue, as well as the court's consideration of information outside the record to make additional factual findings in a supplemental opinion rendered after the denial of defendant's motion to suppress.
Lastly, trial counsel was ineffective at sentencing because he failed to argue against aggravating factors N.J.S.A. 2C:44-1a(3), "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and N.J.S.A. 2C:44-1a(9), "[t]he need for deterring the defendant and others from violating the law." Trial counsel also failed to argue in favor of mitigating factors N.J.S.A. 2C:44-1b(1), "[t]he defendant's conduct neither caused nor threatened serious harm," N.J.S.A. 2C:44-1b(2), "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1b(7), "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense," N.J.S.A. 2C:44-1b(8), "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1b(9), "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense," and N.J.S.A. 2C:44-1b(10), "[t]he defendant is particularly likely to respond affirmatively to probationary treatment."
Following an evidentiary hearing, at which trial counsel, the assistant prosecutor, and defendant testified, Judge DeLury denied the petition in a written decision rendered on January 29, 2010. The judge found that defendant's testimony on the Brimage issue "was entirely incredible," and trial counsel's testimony was "highly credible" and supported by "very detailed billing records" and counsel's "good recollection" of what had occurred. The judge also found that the assistant prosecutor's testimony was "very credible" and supported by her "detailed recollection of the events surrounding . . . defendant's case," including that the State never made a plea offer of nine years with fifty-four months of parole ineligibility; rather, the original plea offer was twelve years with sixty-six months of parole ineligibility. The judge concluded that trial counsel properly explained the Brimage consequences of the plea to defendant and advised defendant of all available plea options.
Judge DeLury found that trial counsel had "multiple conversations" with defendant about the Miranda hearing, and advised defendant of his right to testify, the possible consequences of his testimony, and the possible outcomes. The judge concluded that "[i]n line with the credibility determinations made previously, . . . [d]efendant was informed of his right to testify during the Miranda hearing." Alternatively, the judge concluded that defendant could not show he would have prevailed on the merits because the credible evidence adduced at the hearing confirmed that he had twice received and waived his Miranda rights notwithstanding the lack of signed Miranda cards.
Judge DeLury also concluded that: (1) Rule 3:22-5 barred defendant's argument relating to the confidential informant because this issue had already been adjudicated on the merits;
(2) defendant presented no evidence that the court and the State would have consented to a conditional plea, as required by Rule 3:9-3(f); (3) defendant presented no evidence that he would have prevailed on the merits on the Miranda issue or the denial of his motion to dismiss the indictment; and (4) Rule 3:22-4 barred defendant's challenge to the court's consideration of information outside the record to make additional factual findings in a supplemental opinion rendered after the denial of his motion to suppress, and no exceptions applied. Substantively, the judge found there was no prejudice because the court had already decided defendant's motion to suppress before rendering the supplemental opinion.
As for defendant's sentence, Judge DeLury concluded that mitigating factors 1 and 2 did not apply because "this offense involved a growing operation that cultivated more than 150 mature marijuana plants[.]" The judge concluded that mitigating factors 7, 8, 9, and 10 did not apply because of defendant's prior conviction for third-degree possession of marijuana with intent to distribute, for which he served 364 days in county jail and a one-year probationary term. The judge emphasized that defendant's prior conviction involved cultivating marijuana on his farm, and thus, he has a "proven track record of committing the same offense, in the same way, on the same property[.]"
The judge also concluded that the record supported aggravating factors 3, 6 and 9, and defendant would not have received a better sentence even if trial counsel had argued against them. This appeal followed.
To establish a case of ineffective assistance of counsel, the defendant must show that "[defense] counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984)). Our Supreme Court approved that two-part test in State v. Fritz, 105 N.J. 42, 58 (1987), in which it held that "the federal standard for evaluating an ineffective-assistance-of-counsel claim approved in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, should apply in defining our state constitutional guarantee of effective assistance of counsel." State v. Nunez-Valdez, 200 N.J. 129, 139 (2009).
"When a guilty plea is part of the equation, [the Court has] explained that '[t]o set aside a guilty plea based on ineffective assistance of counsel, 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.'" Id. at 138-39 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
We give deference to the trial court's factual findings on a PCR petition when supported by adequate, substantial and credible evidence. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We give no deference to and are not bound by the court's legal conclusions, which we review de novo. Ibid. "And for mixed questions of law and fact, we give deference, under Rova Farms [Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)], to the supported factual findings of the trial court, but review de novo it's application of any legal rules to such factual findings." Id. at 416.
We are satisfied that the record amply supports Judge DeLury's credibility determinations and factual findings and conclusions on all issues raised in defendant's PCR petition. We affirm substantially for the reasons expressed in the judge's well-reasoned written decision rendered on January 29, 2010. In addition, we make the following comments.
Assuming that trial counsel did not advise defendant of the Brimage consequences of his plea, defendant failed to show that there was a reasonable probability that but for counsel's error, he would have received a lesser sentence or gone to trial. The State never made a plea offer of nine years with fifty-four months of parole ineligibility; rather, it offered twelve years with a mandatory sixty-six months of parole ineligibility. Defendant received a more favorable sixty months of parole ineligibility.
Assuming that trial counsel did not advise defendant of his right to testify at the Miranda hearing, defendant failed to show that he would have prevailed on the merits had he testified. The record indicates that although he made some statements to the police, they were not incriminating statements.
Defendant also failed to show that he would have prevailed on his motion to compel disclosure of the confidential informant's identity, or that there should have been a further inquiry into Sprang's involvement with the informant. Defendant presented no evidence that the informant's testimony was essential to preparing his defense or to assuring a fair determination of the issues, and provided nothing more than speculation and unsubstantiated allegations that Sprang was somehow involved with the informant. State v. Milligan, 71 N.J. 373, 390, 393 (1976); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding that "in order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance").
Defendant also did not show that the informant was an active participant in the crime for which defendant was prosecuted or that fundamental principles of fairness mandated disclosure, and he raised no entrapment defense. State v. Foreshaw, 245 N.J. Super. 166, 180-81 (App. Div.), certif. denied, 126 N.J. 327 (1991). Further, defendant did not show that the informant did anything more than provide a "tip" to the police or that he participated in the preliminary stages of a criminal investigation. Id. at 181.
Finally, Judge DeLury correctly concluded that Rule 3:22-4 barred defendant's challenge to the court's consideration of information outside the record to make additional factual findings in a supplemental opinion. In any event, defendant would not have prevailed on this issue on appeal. The court had already denied defendant's motion to suppress before rendering the supplemental opinion, and its additional factual findings did not affect that ruling.