May 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM MUHAMMAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-10-0819.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2012
Before Judges Parrillo and Skillman.
Defendant William Muhammad appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
During a seven-week period from January 21, 2002 to March 16, 2002, defendant engaged in a crime spree in two neighboring counties involving two carjackings in Essex County on January 21 and 24, 2002, a carjacking in Union County on February 12, 2002, and an aggravated sexual assault, also in Union County, on March 16, 2002. Following his arrest in Union County, defendant was identified in the Essex County crimes via an automatic teller machine (ATM) photo and a photo array.
The Union County charges were resolved first. On March 28, 2003, defendant pled guilty to the February 12, 2002 carjacking and the related offense of possession of a weapon for an unlawful purpose. He was sentenced, in accordance with the plea agreement, to a sixteen-year term subject to the 85% parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On September 12, 2003, defendant pled guilty to the March 16, 2002 aggravated sexual assault, for which he was sentenced to a concurrent ten-year term, subject to NERA.
One year later, on October 4, 2004, the same day the Essex County Prosecutor's Office filed an accusation charging defendant with the January 21, 2002 carjacking, and nine months after an indictment was returned charging him with the January 24, 2002 carjacking, defendant pled guilty to both crimes and related weapons offenses. In exchange for the guilty plea, the State recommended an aggregate twenty-five year custodial term subject to NERA to run concurrently, but not coterminously, with the Union County sentence defendant was serving. At the guilty plea hearing, the court detailed to defendant the terms of the plea agreement:
At the time of your sentencing, the remaining counts of both the indictment and the accusation will be dismissed. The State is recommending that any sentence I impose not be greater than 25 years to be served concurrently with the sentence you're presently serving, but not coterminous with your present sentence.
That means this sentence obviously will extend beyond what would have been your parole ineligibility, 16 with 85. . . . [(emphasis added).]
On November 8, 2004, defendant was sentenced, in accordance with the terms of the plea agreement, to concurrent twenty-five year terms on the two carjackings, subject to NERA, to run concurrent, but not coterminous, with his Union County sentence.*fn1
We affirmed defendant's sentence on our Excessive Sentence Oral Argument calendar.
On April 27, 2009, defendant filed the instant PCR petition stemming from his November 8, 2004 judgment of conviction. Therein, he raised the following issues: (1) his Essex County sentence should have been run coterminously with his Union County sentence and trial counsel was ineffective for failing to request coterminous sentences; (2) the gap time credit should have applied to the parole ineligibility term rather than against his aggregate term; and (3) trial counsel failed to prepare a trial strategy for the Essex County indictment and accusation, failed to file any motions and failed to meet with him prior to the time of the plea, effectively "constructively forcing" him to accept the plea terms offered by the State.
Following a hearing at which defendant testified, the PCR judge denied defendant's petition. In a written decision dated April 26, 2010, the judge found defendant's testimony "evasive, illogical and incredibly vague[,]" in that his allegation that he did not comprehend the differences between the words "concurrent" and "coterminous," was directly contradicted by his very own request at sentencing for coterminous sentences, suggesting his full comprehension of the implications of those terms.
The judge also found no merit to defendant's contention that his trial counsel was ineffective for failing to meet with him because defendant, "admitted that he discussed the terms of the plea with his attorney prior to him entering into it on the record." As to the "gap" credit issue, the judge concluded the record was devoid of any stipulation indicating that the "gap" credit would reduce the period of defendant's parole ineligibility.
On appeal, defendant argues:
COUNSEL WAS INEFFECTIVE FOR FAILURE TO MOVE TO CONSOLIDATE THE CASES IN UNION AND ESSEX COUNTY, THUS CAUSING PETITIONER TO RECEIVE A LONGER PRISON SENTENCE THAN IF THE CASES HAD BEEN CONSOLIDATED, IN VIOLATION OF PETITIONER'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.
This issue that counsel was ineffective for failing to move for consolidation is raised for the first time on this appeal. Because it was not presented in the first instance to the PCR court, we need not consider it now. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nevertheless, because the record is sufficiently complete to permit its adjudication, we will do so.
It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42 (1987). We are persuaded that even if counsel's failure to move for consolidation under Rule 3:25A-1 may be considered deficient performance, see State v. Rountree, 388 N.J. Super. 190, 209-213 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007), defendant has failed to show he was prejudiced by counsel's omission, and therefore his ineffective assistance of counsel claim must fail.
At sentencing on the Essex County convictions, the assistant prosecutor indicated her awareness of the Union County charges and suggested that the plea offer in this case had been reduced from thirty to twenty-five years because the instant matters should have been consolidated with the Union County indictments:
Your Honor, the State, of course, asks that your Honor sentence within the plea agreement of 25 years. A part of the reason that Mr. Muhammad did receive the 25 years -- initially it was a 30-year plea -- was that I was aware of his wish to plead guilty to this, one of the particular cases, when he was in Union County. There was a miscommunication between Union County and myself. I was unaware of the second case in this particular grouping, or I would have put that together.
And so the plea offer, which we believe is a generous plea offer for Mr. Muhammad, was that if it did come about that -- he had indicated he wished to plead to this particular case about a year and a half ago. It should have been placed into a package at that time in Union County, but it was not.
Moreover, at the conclusion of the PCR hearing, although not raised by defendant in his petition, the court nevertheless addressed the consolidation issue and found no adverse consequence befalling defendant:
[A]nd it may -- and it might have been, in fact, . . . had you been able to get to Essex County sooner on a given time, you might have wanted to get a greater or a better deal. But as I look back here, there is really no showing that anything that the attorney did in this case even raises to the level of being a prima facie showing of incompetence.
. . . And particularly in a case like yours, where you're convicted for an offense that occurred later in time and you were in Union County, . . . and you then . . . went to state prison, and then the other offenses that were later in time come up, and . . . you wanted to see if you can put them all together.
However, there is nothing that automatically entitles a defendant to getting that. There's no requirement that the state give any plea offer other than what the state wants to offer. . . . But in any event, the state doesn't have to give you an offer that you want. And in this case, the state gave you what appears to this court to be a very lenient sentence.
If you were in front of -- I mean not that 25 years is ever lenient, but I don't mean to minimize that, but there would be a very good chance under the circumstances of what I read if you had been convicted of that whether you pled guilty or not, that I would not have run your sentences concurrently. I would have run them consecutively if you had been convicted and if you had gone to trial on them. In this instance, you were able to get your terms -- or your lawyer was able to get the terms concurrently and you -- and they ran them concurrently with the sentence that you received in . . . Union County.
. . . [T]he advice she gave you was pretty good advice it seems to me about what you were facing, about what your time was, and about the time you would likely to serve. She got you your plea bargain and that's all the judge was willing to give.
And I don't see how we could impose any greater standard on an attorney.
In Rountree, supra, we found that while defense counsel's failure to move for consolidation satisfied the first prong of the Strickland test, the asserted deficiency did not meet the prejudice prong of the ineffective assistance of counsel claim. 388 N.J. Super. at 213. We reach the same conclusion here. Defendant has simply not demonstrated that counsel's failure to file a Rule 3:25A-1 motion would have made a difference or had any effect on the ultimate sentence defendant received. Nothing in the record suggests that consolidation, even if permitted, would have placed defendant in a more advantageous negotiating position or secured for him a "better bargain" at sentencing. On the contrary, as noted by the PCR judge, defendant received the benefit of a bargain fairly, reasonably and competently struck by defense counsel, and one which the sentencing court was willing to accept.