July 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KASEM ALAOUIE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 93-10-1559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 12, 2012 --
Before Judges Axelrad and Parrillo.
Defendant Kasem Alaouie appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On October 18, 1993, defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3a(1), (2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and two counts of second-degree child endangerment, N.J.S.A. 2C:24-4a. Pursuant to an agreement negotiated with the State, defendant pled guilty to an amended count of aggravated manslaughter and one count of child endangerment in exchange for the State's dismissal of the remaining charges, including murder, and its recommendation that defendant receive a thirty-year term with fifteen years of parole ineligibility for the aggravated manslaughter offense and a ten-year term with a five-year parole ineligibility period for the child endangerment crime.
During the grand jury proceedings, it was established from defendant's own confession, that on February 16, 1993, defendant hit his wife in the face with an axe after she returned home at 12:30 a.m. from a date and told him she was in love with someone else. She fell to the floor and he struck her several times, killing her. This occurred in the presence of the couple's five-year-old daughter,*fn1 who not only witnessed defendant attack and kill her mother, but heard her mother's cry for help and request of her to call the police. The daughter, however, was unable to find the telephone. At the plea hearing, defendant admitted to killing his wife with an axe while his children were home. It was also established at the hearing that defendant was entering his guilty plea knowingly, freely and intelligently.
Defendant was sentenced on March 24, 1995, in accordance with the plea agreement to an aggregate forty-year term with twenty years of parole ineligibility. We upheld the sentence following argument on our April 2, 1996 Excessive Sentence Oral Argument Calendar, and the Supreme Court denied certification. State v. Alaouie, 146 N.J. 68 (1996).
Thereafter, on or about December 17, 1997, defendant filed an initial pro se PCR petition and the court advised him he needed to obtain counsel before it could be heard. Between October 2004 and February 2005, defendant filed a second one, which was denied without prejudice "for failure to provide a factual basis upon which relief can be granted." In February 2006, defendant filed another pro se PCR petition, generally alleging that trial counsel was ineffective for failing to investigate and prepare his defense and to properly advise him with respect to his 1995 guilty plea. The Law Division summarily denied relief on March 17, 2006 as time barred, Rule 3:22-12, and we affirmed in an unpublished opinion. State v. Alaouie, No. A-4810-05 (App. Div. May 21, 2007). On defendant's petition for certification, the Court, by order of April 8, 2008, remanded the matter to the Law Division to determine whether defendant was represented by counsel on his first PCR petition in 1997 or had elected to proceed pro se and further that if neither, the matter should be referred to the Office of the Public Defender to represent defendant at a hearing on the issues raised in the 1997 PCR petition. State v. Alaouie, 195 N.J. 515 (2008). The remand court, finding no proof of counsel representation or election to proceed pro se, directed the Public Defender's Office to represent defendant with respect to all his PCR claims.
Assigned counsel submitted a brief in support of the received PCR petition, with an accompanying certification from defendant. At the ensuing hearing on February 19, 2010, counsel argued that defendant was not effectively represented during both the pretrial process and guilty plea proceeding; that he did not understand the nature of the plea agreement; and that there was no basis for the child endangerment charge. The State countered that defendant's two trial attorneys were effective in representing him by highlighting the seriousness of the charges compared to the sentence imposed and that defense counsel appropriately reviewed the evidence against defendant in assessing all possible defenses, including a psychiatric defense. Further, the State maintained that the transcript of the plea hearing clearly indicates the terms of the plea agreement and the several instances in which defendant states that he understands them. Finally, with regard to the charges of child endangerment, the State argued that defendant's daughter's statement regarding being present in the room during the attack was sufficient to indict on the charge of child endangerment.
Following argument, the PCR court denied defendant's petition, finding "nothing in these papers that would suggest that the defendant did not understand what he was accepting. And the sentences involved with the parole disqualifier they're clearly laid out." In a supplemental written decision, the PCR judge expounded on his determination:
The issue before this Court was whether the defendant had properly stated grounds supporting his PCR. This Court noted that Judge Moses spent additional time taking the defendant's plea to ensure he understood the terms. This Court found that nothing suggested that the defendant did not knowingly, intelligently, and voluntarily enter into the plea agreement. The Court cited the transcript of the plea hearing which is replete with references as to the defendant's understanding of the agreement. Moreover, no psychiatric reports were produced about the defendant's alleged misunderstanding of the agreement or that he was incompetent at the time he entered into the agreement. Finally, this Court found that nothing in the record suggests that the defendant was not represented by competent counsel.
On appeal, defendant raises the following issues:
I. DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS DUE TO HIS TRIAL COUNSEL'S FAILURE TO PROVIDE ADEQUATE ADVICE AND INFORMATION DURING THE PLEA BARGAINING PROCESS.
A. TRIAL COUNSEL'S FAILURE TO PROVIDE THE DEFENDANT WITH ADEQUATE ADVICE AND INFORMATION DURING THE PLEA BARGAINING PROCESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
1. TRIAL COUNSEL'S FAILURE TO PROVIDE THE DEFENDANT WITH ADEQUATE ADVICE AND INFORMATION DURING THE PLEA BARGAINING PROCESS CONSTITUTED DEFICIENT CONDUCT.
2. TRIAL COUNSEL'S FAILURE TO PROVIDE THE DEFENDANT WITH ADEQUATE ADVICE AND INFORMATION DURING THE PLEA BARGAINING PROCESS PREJUDICED DEFENDANT.
II. DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS DUE TO TRIAL COUNSEL'S INADEQUATE PRE-TRIAL PREPARATION.
A. TRIAL COUNSEL'S INADEQUATE PRE-TRIAL PREPARATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
1. TRIAL COUNSEL'S INADEQUATE PRE-TRIAL PREPARATION CONSTITUTED DEFICIENT CONDUCT.
2. TRIAL COUNSEL'S INADEQUATE PRE-TRIAL PREPARATION PREJUDICED DEFENDANT.
III. DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS BECAUSE HIS TRIAL COUNSEL'S INADEQUATE PRE-TRIAL PREPARATION LED TO THE TEN (10) YEAR SENTENCE FOR THE CHILD ENDANGERMENT CHARGES.
A. TRIAL COUNSEL'S INADEQUATE PRE-TRIAL PREPARATION WHICH LED TO THE TEN (10) YEAR SENTENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
1. TRIAL COUNSEL'S INADEQUATE PRE-TRIAL PREPARATION WHICH LED TO THE TEN (10) YEAR SENTENCE CONSTITUTED DEFICIENT CONDUCT.
2. TRIAL COUNSEL'S INADEQUATE PRE-TRIAL PREPARATION WHICH LED TO THE TEN (10) YEAR SENTENCE PREJUDICED DEFENDANT.
These issues effectively reduce themselves to the essential claim that trial counsel failed to develop a defense against the child endangerment charge and failed to properly advise defendant as to the "law and facts" as it pertains to that offense to have enabled him to make an informed decision whether to plead guilty. We find no merit to these contentions. R. 2:11-3(e)(2).
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 but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 58-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); see also 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, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
In the first place, defendant offers no competent proof that counsel failed to review the grand jury transcripts or analyze the sufficiency of the proofs on the child endangerment count. See State v. Taccetta, 351 N.J. Super. 196, 199, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002). In any event, trial counsel undoubtedly was focused primarily on the more serious charge of murder, given defendant's confession to repeatedly attacking his wife with an axe and the presence of blood on his clothes thereafter. On this score, defense counsel hired an expert to explore diminished capacity and insanity defenses, and ultimately managed to secure a favorable plea bargain in which the murder charge was amended to aggravated manslaughter with a recommended sentence of thirty years with a fifteen-year period of parole ineligibility, consecutive to a ten-year term with a five-year parole ineligibility period on one count of endangering the welfare of a child. Thus, defendant's present, and much belated, focus on the latter charge ignores the facts and circumstances extant at time of plea and seeks to evaluate counsel's performance through the distorting lens of hindsight. See Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; State v. Hess, 207 N.J. 123 (2011).
Most significant, however, defendant has simply failed to explain exactly what facts a "thorough investigation of the law and facts" pertaining to the child endangerment charge would have uncovered in his favor, or that would have supported a motion to dismiss, or that would have provided a valid defense. As to the sufficiency of the State's proofs, defendant has similarly failed to assail the grand jury finding of probable cause on the child endangerment charge, much less offer any competent proof - expert or otherwise - that his five-year-old daughter suffered no harm as a result of seeing her mother brutally beaten to death with an axe. Merely suggesting so falls far too short of the prima facie proof needed to warrant an evidentiary hearing on the alleged counsel deficiency. See State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant also fails to satisfy the prejudice prong, namely but for the claimed performance deficiency, he would not have pled guilty and would have instead insisted on going to trial. Defendant's unsupported claim is implausible on its face as defendant was facing a minimum thirty-year term without parole on the murder charge, for which the evidence was compelling.
In sum, as did the PCR court, we find defendant's various claims of ineffective assistance of counsel do not meet either the performance or prejudice prong of the Strickland test and are therefore lacking in merit.