February 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HABEEB CHAMPION, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-02-0480.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2011
Before Judges Payne and Simonelli.
Defendant, Habeeb Champion, was charged with murder, N.J.S.A. 2C:11-3a(1) and (2), and other crimes, but pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, receiving an eighteen-year sentence subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. The sentence was to be served concurrently to his sentences on other crimes. Prior to sentencing, he expressed second thoughts regarding the plea, but he did not move for relief. At sentencing, the court would not permit his attorney's oral motion to retract the plea, but advised defendant to file a post-sentence motion seeking that relief. Defendant did not do so, but instead, raised the allegedly involuntary nature of his plea on direct appeal, arguing in that regard:
THE DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BECAUSE HIS GUILTY PLEA WAS NOT KNOWING, UNDERSTANDING AND VOLUNTARY.
IT WAS ERROR FOR THE COURT NOT TO ALLOW DEFENDANT TO WITHDRAW HIS PLEA PRIOR TO SENTENCING.
Defendant also argued on appeal that his sentence was excessive.
In rejecting defendant's arguments with respect to
withdrawal of his plea, we found:
[T]he plea agreement outlining the terms of defendant's proposed plea was signed by both defendant and his counsel and the terms thereof were placed on the record. Defendant was sworn and testified that he understood the terms of the agreement; that he had sufficient time to discuss the matter with his attorney; that he had no questions of the court or his attorney concerning the terms or conditions of the agreement; that he understood at sentencing the State would be free to recommend a term of eighteen years' imprisonment be imposed; that the sentence given would be subject to an eighty-five percent parole disqualifier in accordance with NERA; that he understood the State's obligation to prove his guilt beyond a reasonable doubt and his right to a jury trial and was voluntarily waiving those rights; that no one had forced or coerced him to enter his plea of guilty; that he had signed the plea agreement and fully understood its contents and meaning; and that he made the decision to plead guilty; and he was satisfied with the services of his attorney.
[State v. Champion, No. A-4622-03 (App. Div. December 29, 2004) (slip op. at 5-6).]
We also considered the arguments for withdrawal of his plea raised by defendant at sentencing, including the argument that counsel failed to investigate the matter; he persuaded defendant's family that it was in defendant's best interest to plead guilty when defendant claimed he did not kill the victim; and, at the time of the plea, defendant was "on medication" and didn't feel he was "able to make the right decision." Id. at 8. Further, we considered letters sent by defendant to his trial attorney and to the court prior to sentencing. Id. at 9. We concluded that "defendant's contentions that his entry of the guilty plea was not knowing, understanding and voluntary, and that the trial court erred in refusing to permit him to withdraw his plea prior to sentencing, [were] without sufficient merit to warrant extensive discussion in a written opinion." Ibid. We then determined on the basis of our prior findings that the "record establishes that defendant was fully cognizant of the terms of the plea and its consequences, that he entered his guilty plea truthfully, voluntarily and understandingly, and provided an adequate factual basis to support the amended charge of first-degree aggravated manslaughter." Id. at 9-10. We also held that, although defendant contended on appeal that he was taking medication and was not thinking clearly, "those contentions are not supported by the record of the plea hearing, nor has defendant proffered any factual basis or expert opinion to support that contention." Id. at 10. Certification was denied. State v. Champion, 183 N.J. 257 (2005).
Defendant then moved for post-conviction relief (PCR) and, in his pro se and counseled briefs, he again sought to vacate the plea through claims of ineffective assistance of counsel. Defendant argued through his attorney:
THE DEFENDANT'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.
THE PETITIONER HAS PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE PETITIONER HAS PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
In a pro se brief, defendant first argued:
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
In a further pro se brief, defendant argued additionally:
POST-CONVICTION RELIEF RULE 3:22-4 DOES NOT PRECLUDE CONSIDERATION OF PETITIONER'S CLAIM FOR RELIEF.
PETITIONER IS ENTITLED TO RETRACT HIS PLEA OF GUILTY WHERE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
DUE PROCESS REQUIRES VACATING THE DEFENDANT'S GUILTY PLEA WHERE THE DEFENDANT WAS NOT COMPETENT TO PLEAD GUILTY.
PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING UNDER RULE 3:22-10 TO RESOLVE HIS CLAIMS FOR RELIEF.
After oral argument on defendant's petition was conducted,
Judge DePascale denied relief to defendant, stating:
The Petition alleges ineffectiveness of Counsel relating to the entry of the plea. Specifically, the Defendant alleges for various reasons relating to his attorney's representation, his plea was not knowingly, voluntarily and intelligently entered. Insofar as that issue was directly raised and rejected on his direct appeal, it is hereby barred by [Rule] 3:22-5.
Even if the argument was not procedurally barred, the Record stands in direct contrast to the Defendant's allegations in this Petition. A review of the plea colloquy makes abundantly clear that the Defendant was adequately represented by Counsel and more importantly, under oath the Defendant stated:
First, he understood the terms of the agreement.
Second, he had had sufficient time to discuss the facts and circumstances of his case, as well as possible defenses to the charges before deciding to plead guilty.
Third, that he has a right to a trial before a jury;
Fourth, that no one forced him or put any pressure on him to waive those rights;
Fifth, that he himself had made the decision to plead guilty;
And finally, that he was satisfied with the services of his attorney. Each of those answers, given in court under oath, are directly contradictory to the assertions made in this Petition. The assertions here therefore have little credence.
Consequently, even if the Petition were resolved on the merits, it could not satisfy either prong of the Strickland*fn1 test in light of the fact-finding done on the direct appeal.
As a consequence, the Petition is denied.
On appeal to us from the denial of PCR, defendant presents the following arguments:
I. THE INEFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND PCR COUNSEL DEPRIVED CHAMPION OF HIS CONSTITUTIONAL RIGHTS AND RENDERED THE PLEA ALLOCUTION AS FUNDAMENTALLY UNRELIABLE.
A. Champion Was Denied the Effective Assistance of Trial Counsel.
B. Champion Was Denied the Effective Assistance of PCR Counsel.
C. Champion Was Deprived of His Constitutional Right to Effective Assistance of Trial Counsel, Appellate Counsel and PCR Counsel Under the United States Constitution and the New Jersey Constitution, and Therefore He Should Have Been Permitted to Retract His Plea.
D. Champion Was Deprived of the Assistance of Effective Trial and PCR Counsel Because Both Counsel Failed to Address Champion's Lack of Understanding of the Plea.
II. THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY CHAMPION.
We affirm, substantially for the reasons set forth by Judge DePascale in his oral opinion denying PCR, and we agree with him that an evidentiary hearing in this case was not necessary. We add only the following comments. At the time of the hearing on defendant's PCR petition, the Court's decision in State v. Slater, 198 N.J. 145 (2009) had just been issued, and as a result, a full discussion of that case was not presented on the record by counsel. On appeal, defendant claims that PCR counsel was ineffective in failing to discuss Slater. However, the record reflects the fact that Judge DePascale was familiar with the decision, and that he determined independently that it would not affect the result in defendant's case. We agree. In Slater, the Court recognized four factors to be considered in reaching a determination whether a plea should be vacated, regardless of whether the defendant sought such relief before or after sentencing:
(1) 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.
[Id. at 157-58.]
When we apply those factors to the present case, we are satisfied that grounds for vacating defendant's plea have not been presented. In that regard, we note that defendant has claimed innocence. Nonetheless, in his pro se brief in support of PCR, he has acknowledged that, after two shots at the victim had been fired by others, defendant was handed the gun, he pointed the gun in the direction of the victim, and he fired one shot. Defendant's claim of innocence arises solely because of his uncertainty whether he actually hit the victim and whether the shot fired by him was the one causing death. Thus, defendant's claim of "innocence" is not supported.
Turning to the second factor, defendant claims that, at the time of his plea, he may not have been legally competent to accept the State's plea bargain, and that he may have relied on material misinformation that his sentencing exposure included life in prison. Defendant has offered evidence that in September and October 2000, two years before his plea in this case, he was given a diagnosis of "schizoaffective disorder - depressed type" and was prescribed Seroquel and Zyprexa. Defendant has offered no evidence whether he was taking such medications at the time of his plea. Further, he has offered no evidence either that his mental condition or medications taken for that condition reasonably would have affected his thought processes at the time that he accepted the State's plea agreement. Thus, defendant has not properly supported any claim he may have had regarding his mental condition at the time of the plea. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). As far as defendant's sentencing exposure is concerned, the information provided to him was accurate.
To the extent that it is relevant, we note that defendant did accept a plea bargain offered by the State to a lesser crime than that charged in the indictment. As to the fourth factor, we are unable to assess prejudice to the State, lacking information in that regard. Nonetheless, we note the passage of ten years since defendant accepted the State's plea offer. From this analysis we find no grounds for concluding that, if counsel had moved on defendant's behalf to retract his plea either prior to sentencing or immediately thereafter, the motion would have been granted. As a consequence, even if we were to assume counsel was ineffective in failing to file such a motion, there is no basis to conclude that the result would have been different. Thus, Strickland's conditions have not been met.
Defendant has argued additionally that PCR counsel was ineffective for failing to fully present defendant's pro se contentions during oral argument, in violation of State v. Webster, 187 N.J. 254, 257-58 (2006), State v. Rue, 175 N.J. 1, 18-19 (2002), and Rule 3:22-6(d). However, at the commencement of the hearing in the matter, Judge DePascale indicated that he had read both counsel's brief as well as defendant's. The judge stated: "I don't need you to reiterate what's in those Briefs." Nonetheless, in subsequent argument, counsel noted that defendant's arguments for PCR centered on his ability to withdraw his guilty plea, and he specifically directed the judge to defendant's briefs where the facts had been "laid out in detail" by defendant. Thus, counsel fulfilled his obligations under Webster, Rue and the Rules of Court.
As a final matter, defendant alleges that counsel failed to fulfill his obligation under State v. Hicks, 411 N.J. Super. 370, 377 (App. Div. 2010) "to certify that he had thoroughly reviewed Champion's memorandum and determined that 'no further argument or elaboration [was] required.'" However, as the State notes, that obligation arises only when counsel does not submit a supplemental brief and confines his oral argument, if any, to the points raised by the defendant in his pro se submission. Id. at 373-74. Such a circumstance did not arise in this case.
As a consequence of the foregoing analysis, we are satisfied that defendant's appeal is procedurally barred and that it lacks substantive merit.