April 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 03-03-00191, 03-06-00544, 03-06-00545 and 03-06-00546.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2012
Before Judges Cuff and Lihotz.
Defendant Christopher Smith appeals from the denial of his petition for post-conviction relief (PCR), without benefit of an evidentiary hearing. On appeal he argues:
THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S FIRST PETITION FOR POST-CONVICTION RELIEF.
A. TRIAL COUNSEL'S FAILURE TO MEET WITH DEFENDANT-PETITIONER PRIOR TO THE TRIAL DATE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
B. TRIAL COUNSEL'S FAILURE TO FILE PRE-TRIAL MOTIONS WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT ERRED IN FINDING THAT THE DEFENDANT-APPELLANT KNOWINGLY AND VOLUNTARILY ENTERED AN "OPEN PLEA" WITH AN UNDERSTANDING OF ITS PENAL CONSEQUENCES.
We have reviewed these arguments in light of the record and the applicable law. We affirm.
Defendant was charged with multiple offenses in several indictments. On March 2, 2004, he entered an open guilty plea to four third-degree crimes included in four indictments: attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (Indictment No. 03-03-00191); possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (Indictment No. 03-06-00544); burglary, N.J.S.A. 2C:18-2a(1) (Indictment No. 03-06-00545); and burglary, N.J.S.A. 2C:18-2a(1) (Indictment No. 03-06-00546). Based on defendant's past convictions, the State moved for imposition of a discretionary extended term sentence. Judge John M. Waters, Jr., granted the motion and applied the extended term to the burglary charge in Indictment No. 03-06-00545.
Defendant was given consecutive sentences for Indictments 03-06-00545 and 03-06-00546 for an aggregate term of fifteen years imprisonment, half of which was to be served prior to parole eligibility.
On appeal we ordered sentencing in accordance with State v. Natale, 184 N.J. 458 (2005). On remand, Judge Waters imposed the same sentence. Defendant's second appeal resulted in a remand to reconstruct the sentencing record, which could not be reproduced. Thereafter, the matter was listed on our Excessive Sentencing Oral Argument calendar. We affirmed the trial court's sentence. Certification was not sought.
Defendant filed a PCR petition claiming ineffective assistance of trial counsel. Specifically, he maintained counsel was negligent for failing to: appeal the denial of his application for admission to drug court; file pre-trial motions to suppress the "show-up" identification evidence in Indictment 03-06-00545 and to dismiss the charge in Indictment No. 03-06-00546 because of prosecutorial misconduct by intentionally confusing the grand jury testimony; consult with him to prepare for trial; and give complete advice regarding the consequences of his plea, suggesting he was not aware the State sought an extended term or that the plea was open.
Judge Richard J. Geiger reviewed the PCR petition and concluded the record defied defendant's contentions, all of which were found without merit. The PCR petition was denied without need of an evidentiary hearing. This appeal ensued.
The analytic framework controlling our review of a trial court's denial of a PCR petition is well recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2012). See also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). If "a defendant has established a prima facie showing of ineffective assistance of counsel, [then] he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different[.]'" Rountree, supra, 388 N.J. Super. at 206 (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)).
Our review discerns no error in the denial of defendant's petition for PCR. Judge Geiger noted defendant executed the pre-trial memorandum on Indictment No. 03-06-00544, which stated defendant qualified for an extended term and the maximum sentence listed for the third-degree offense is ten years with five years parole ineligibility. The last item on the memorandum expressly stated if defendant rejected the plea offer that day, any subsequent plea would be without a plea recommendation. Included within the terms of the plea agreement, which addressed not only the charge in Indictment No. 03-06-00544, but those in three additional indictments, are statements that were acknowledged by defendant including that it was an "open plea," and any "sentence is in the [c]court's discretion" with "no prosecutor recommendation-State reserves [the] right to ask for [a] maximum sentence-intends to file for [an] extended term."
Additional facts refuting defendant's contention that no one explained what was meant by the term "open plea" are found in the lengthy, thorough plea colloquy conducted by Judge Waters, who advised defendant he was "discretionary extended term eligible" as a persistent offender. He explained defendant's prior criminal convictions meant he qualified as a persistent offender and faced a possible ten year maximum sentence for a single offense. Defense counsel interjected, stating he and defendant spoke of this possibility. Thereafter, Judge Waters explained that a guilty plea to the remaining offenses under the plea agreement could result in consecutive sentences, stating "So that means you could get 10, max on one, and five, five, and five" because they were separate crimes. At the prosecutor's request, defendant was specifically asked whether he understood that the open plea meant "[t]he State's reserving the right to ask for the most that [it] can get, [up] to 25 years? Do you understand that?" to which he replied, "Yes."
We reject defendant's contention that from this information he understood his maximum plea exposure was ten years. He affirmatively acknowledged he understood the specific instructions presented by Judge Waters, which plainly relate a possible maximum exposure of twenty-five years.
We also reject defendant's suggestion that the language in the plea form regarding the extended term was added after he pled. This possibility is defied by the judge's colloquy reciting the terms as written, each of which were acknowledged as understandable and accepted by defendant. Following our review, we conclude Judge Waters' explanation was more than adequate to advise defendant of the penal consequences of a guilty plea to the charges in the included indictments.
Also during the plea hearing, defendant acknowledged he was waiving his right to file pre-trial motions. Specific examples were listed including a motion to suppress evidence or to preclude evidence. To each of these, defendant repeated his affirmative response. Defendant agreed counsel had thoroughly discussed his case with him, defining his claims of insufficient preparation, and further acknowledged he was satisfied with the legal representation provided. Finally, the PCR judge noted the claim of the failure to request a Wade*fn1 hearing omitted the factual basis of impermissible suggestiveness.*fn2
As to the claim counsel should have appealed the denial of drug court admission, Judge Geiger explained defendant was statutorily barred from admission by his prior conviction for aggravated assault. See N.J.S.A. 2C:35-14b(2). Moreover the issue was not raised on direct appeal. Finally, the grand jury testimony in Indictment No. 03-06-00546*fn3 was not inaccurate or confusing and revealed police observed defendant inside a residence and he fled when told to stop. The police officer recognized him and later set up surveillance resulting in defendant's arrest the following day. These facts, presented in the grand jury transcript contradict defendant's suggestion they were muddled.
Judge Geiger's factual findings are amply supported by the record and we reject defendant's arguments to the contrary as without merit. R. 2:11-3(e)(2). In sum, defendant has failed to demonstrate trial counsel's conduct was negligent and that defendant was prejudiced as a result of counsel's actions or omissions. Consequently, no evidentiary hearing was necessary. Preciose, supra, 129 N.J. at 462. We have no basis to interfere with Judge Geiger's order denying defendant's petition for PCR.