On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 98-05-0217.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 28, 2012
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant, Michael Dirago, who was convicted of murder in 1991, appeals from denial of his second petition for post-conviction relief (PCR), filed fifteen years later, in which he argued ineffective assistance of trial counsel, namely that counsel misadvised him concerning the sentence he would receive if convicted at trial, resulting in his rejection of the State's plea offer. The PCR judge denied defendant's petition on procedural grounds under Rule 3:22-12 and Rule 3:22-4. We affirm.
Following a jury trial, defendant was convicted on April 19, 1991 of first-degree murder, N.J.S.A. 2C:11-3a(1), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and possession of a handgun without a permit, N.J.S.A. 2C:39-5b. Two months later, defendant was sentenced to life in prison without parole for thirty years on the murder conviction and to concurrent terms of fifteen years and five years, respectively, on the weapons convictions.
On direct appeal, defendant challenged evidential rulings, voir dire, jury instructions, and argued the two weapons offenses should have been merged. We affirmed the murder conviction, but remanded for merger of defendant's conviction for possession of a weapon for an unlawful purpose with his murder conviction. State v. Dirago, No. A-0809-91 (App. Div. Oct. 13, 1994). The Supreme Court denied defendant's petition for certification on December 13, 1994. State v. Dirago, 139 N.J. 289 (1994).
On May 20, 1996, defendant filed a petition for PCR in which he alleged eight claims of ineffective assistance of trial counsel dealing with trial preparation and trial errors. By order of June 29, 2000, the court denied defendant's petition in connection with seven of his eight assertions. Following an evidentiary hearing during which defendant's trial counsel, New York attorney Richard J. Reisch, testified, the court granted defendant's PCR petition, reversed and vacated defendant's murder conviction, and ordered a new trial by order of April 8, 2002. We granted the State's motion for leave to appeal, and reversed the order granting defendant's PCR petition and reinstated his conviction and sentence. State v. Dirago, No. A-5091-01 (Nov. 25, 2002). On March 25, 2003, the Supreme Court denied certification. State v. Dirago, 176 N.J. 73 (2003).
In December 2003, defendant sought relief through the federal process by filing a writ of habeas corpus, which was denied in November 2005.
On September 15, 2006, defendant filed a second pro se petition for PCR, and counsel was assigned by order of June 12, 2007. Defendant raised additional grounds of ineffective assistance of trial counsel, namely that trial counsel misadvised him concerning the sentence he could receive if convicted at trial, resulting in his rejection of the State's plea offer. Following oral argument, Judge Patricia Richmond denied defendant's petition by order and letter opinion of April 28, 2009, finding it was procedurally barred under Rule 3:22-12 and Rule 3:22-4. This appeal ensued.
Defendant was convicted of the 1985 murder of his former girlfriend, Yvonne Davi. Our per curiam opinion, State v. Dirago, supra, No. A-0809-91 (slip op. at 2-4), recited the following facts and evidence adduced at trial. Davi had a "tempestuous" relationship with defendant, involving physical abuse and intimidation. After Davi stopped seeing defendant, he sent love letters and flowers to coax her into seeing him again. Davi eventually agreed to meet with defendant, and on April 16, 1985, they went to Fox Hunt Pub. After telling her roommates at about 8:30 p.m. that she would be home in twenty minutes, defendant persuaded Davi to go to a bar in New York City called Tea Bags. At the bar, the victim and defendant met a mutual friend, Richard Ferrante. Unbeknownst to Davi, Ferrante agreed to assist defendant in killing her.
According to Ferrante, the men convinced Davi to accompany them to Atlantic City. However, defendant and Ferrante were using the trip as a pretext to lure Davi to an isolated location. While driving, Davi realized they were not going to Atlantic City and began to struggle. Defendant shot and killed Davi in the car, and the two men drove into Pennsylvania, where they dumped the body in a wooded area.
Davi was reported missing after she failed to return home. When defendant was questioned by police, he explained that Davi had abruptly left the bar in New York City, and although he searched for her, he could not locate her and returned to the bar. Davi's remains were found eight months later.
During a pretrial conference in August 1989, defendant rejected a plea offer from the State offering a maximum of thirty years incarceration with thirty years parole ineligibility. After defendant's New Jersey attorney, Carl Taraschi, stated on the record that "[t]he offer is rejected[,]" the following colloquy between the prosecutor and Judge Paul R. Kramer occurred:
THE COURT: Well, let me make sure the four of us understand what we're saying.
Now, what you're saying is you want your -- You're recommending a sentence of thirty years, but with no parole for thirty years; is that right? [Prosecutor]: That's correct, your Honor.
THE COURT: Of course, your answer is, even if you're convicted, that's the most you're going to get. All right. So, I understand your position.
I'm not being critical, but, of course, you're, in effect, offering them nothing. [Prosecutor]: Certainly.
Defendant was tried and convicted in 1991. At sentencing on June 7, 1991, the State noted defendant's exposure for the first-degree murder offense was life imprisonment with a thirty-year period of parole ineligibility and urged that sentence. Defense counsel Reisch responded:
I know the constraints that the court has on sentencing and I know that the only freedom the court would have is to add as consecutive sentences some of the other convictions and I would ask the court not to do that.
I would just ask the court to grant him that -- the quantum of leniency that would be comprised of sentencing him on counts two and three concurrently to the mandatory sentence on count one.
Defendant stated he had "[n]othing" to say for himself. Judge Kramer then sentenced defendant to life imprisonment without parole for thirty years on the murder conviction.
In defendant's second petition for PCR filed in 2006, defendant claimed he had not received the transcript of the 1989 plea negotiation hearing until 2003, after which he did research and decided he had a viable claim of ineffectiveness of trial counsel for misinforming him that the maximum sentence he could receive was thirty years. Defendant argued that based on this information, he rejected the State's plea offer because he believed there was little incentive not to proceed with trial. He certified that Reisch assured him the State's plea offer of thirty years with a thirty year stipulation was meaningless because it was the same sentence he would face if he went to trial. Defendant argued the colloquy between the prosecutor and the court at the plea hearing, in which the judge said the State's plea offer was in fact "offering [defendant] nothing," confirmed the ...