July 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEROME HARBOUR, A/K/A LARMAR HARBOUR, DEFENDANT-APPELLANT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Cuff and St. John.
Defendant Jerome Harbour appeals from the July 17, 2009 order denying his petition for post-conviction relief (PCR). He argues trial counsel provided ineffective assistance, including pressuring him into pleading guilty, failing to move for dismissal of the robbery indictment, and not sufficiently reviewing discovery with him. Further, defendant contends he should have been permitted to withdraw his guilty plea, and been afforded an evidentiary hearing in relation to his PCR. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On February 7, 2005, a grand jury returned Indictment No. 05-02-0327, charging defendant with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); second-degree attempted robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count Two); and first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Three). On February, 17, 2005, a grand jury returned Indictment No. 05-02-0419, charging defendant with possession of cocaine, N.J.S.A. 2C:35-10a(1). On March 24, 2005, a grand jury returned Indictment No. 05-03-0744, charging defendant with possession of heroin, N.J.S.A. 2C:35-10a(1).
After plea negotiations, defendant pled guilty to Count Three, first-degree armed robbery, of Indictment No. 05-02-0327, and to the charges in the other two indictments. The State agreed to dismiss the remaining counts and recommended a sentence on the robbery charge of twelve years imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to concurrent sentences of four years flat on each of the narcotics charges.
On May 5, 2005, defendant appeared before Judge Anthony J. Mellaci, Jr., completed the plea forms, expressed his understanding of the plea agreement, and waived his right to trial. During the plea hearing, defendant affirmed he had not been threatened and was pleading guilty of his own free will.
He also averred that he had reviewed the charges and plea forms with his attorney, had all his questions answered to his satisfaction, and understood the plea agreement and the charges. The judge reviewed the ramifications of the plea agreement with defendant and recited the possible fines and both the bargained-for-sentence and the mandatory maximum he could impose if defendant accepted the plea agreement. Defendant confirmed he understood, and accepted the consequences of his guilty plea.
In establishing the factual basis for his guilty plea, defendant admitted he acted as an accomplice in the armed robbery, and that the narcotics belonged to him and were in his possession.
Prior to sentencing on June 15, 2005, defendant filed a pro se motion to withdraw his guilty plea to the robbery charge. He alleged counsel had not properly explained to him the consequences of his plea.
At defendant's sentencing on August 19, 2005, his counsel indicated he had reviewed defendant's pro se motion with him and that defendant had decided to withdraw the motion. The judge stated that he had reviewed the tape of the plea hearing from May 6, 2005, and said it was "clear that [defendant] understood what was going on at the time," and understood "the ramifications of the plea." Defendant confirmed he wanted to withdraw his motion and go forward, stating, "Yeah, [my lawyer] did a good job." The judge offered to play the tape of the plea hearing for defendant but he declined. Defendant affirmed he was not being forced or threatened to withdraw his motion and was doing so of his own free will. The court proceeded to then sentence defendant to the bargained for twelve years on the robbery charge, subject to the provisions of NERA, and to concurrent sentences of four years flat on each of the narcotics charges.
Defendant did not appeal, instead, on February 6, 2008, defendant filed a petition for PCR in which he asserted he was "misrepresented" by counsel. Defendant argued, among other things, he was denied effective assistance of counsel; he should have been permitted to withdraw his guilty plea; and an evidentiary hearing with regard to his PCR is required.
The PCR judge denied defendant's petition and this appeal ensued.
On appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED BY REFUSING TO AFFORD DEFENDANT AN EVIDENTIARY HEARING AND BY DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
DEFENDANT SHOULD HAVE BEEN PERMITTED TO WITHDRAW HIS GUILTY PLEA.
The relevant principles are well-established. "[PCR] is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits is generally entitled to an evidentiary hearing. Id. at 463. Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, "'defendant must show that counsel's performance was deficient.'" 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). Next, defendant must show that his attorney's "'deficient performance prejudiced [the] defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). With respect to both prongs of the Strickland test, Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002).
To justify withdrawing a guilty plea premised on ineffective assistance of counsel, defendant must satisfy a modified Strickland standard:
When a guilty plea is part of the equation, . . . a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases" and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." [State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 157 N.J. 434, 457 (1994)).]
Moreover, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky,___ U.S., ___ 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
Furthermore, in addressing a withdrawal of a guilty plea, our Supreme Court has set forth the following standard:
[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (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. [State v. Slater, 198 N.J. 145, 157-58 (2009).]
These "'same factors are to be used for motions filed either before or after sentencing,' whether the motion is made pre-or post-sentencing 'will trigger different burdens of proof for the movant.'" State v. Hayes, 205 N.J. 522, 535 (2011) (quoting Slater, supra, 198 N.J. at 158). "[P]re-sentence motions to withdraw a plea are governed by the 'interest of justice' standard in Rule 3:9--3(e), while post-sentence motions are subject to the 'manifest injustice' standard in Rule 3:21--1." Slater, supra, 198 N.J. at 158.
After a thorough Strickland analysis, the PCR judge found defendant failed to establish a prima facie case of ineffective assistance of counsel. Further, he found defendant's claim amounted to "nothing more than  bald assertions that his trial counsel pressured him into taking a plea." Notably, on two different occasions, defendant indicated he was satisfied with his attorney's representation and was entering the plea of his own free will. He also complimented his counsel's performance, stating he "did a good job." We agree with the PCR judge that defendant did not meet the burden of proving his right to relief by a preponderance of the evidence.
Finally, in considering defendant's motion to withdraw his plea, the PCR judge comprehensively evaluated the Slater factors. In his findings, the PCR judge noted that defendant did not assert a colorable claim of innocence, rather he asserted "nothing more than his bald self-serving assertions of innocence." The judge found defendant did not point to any "hard evidence of his innocence, and only argues that his attorney was ineffective while counseling him regarding his plea." In analyzing the nature and strength of defendant's reasons for withdrawing, the judge referred to the sentencing transcript and transcript of the plea where, under oath, defendant failed to "bear any of this out." The judge stated that defendants have a heavier burden in seeking to withdraw a plea entered as part of a plea agreement and that defendant failed to meet his burden. Slater, supra, 198 N.J. 160-61. Finally, he found withdrawal of the plea would result in unfair prejudice to the State based on the amount of time between the original plea in 2005 and his 2008 petition for PCR in which he sought to withdraw the plea based on ineffective assistance of counsel. See State v. Munroe, ___ N.J. ___, ___ (2012) (slip op. at 16) ("[I]n calculating any lost opportunity to the State, ordinarily we look to the intervening time between the entry of the plea and the hearing on the withdrawal motion.").
We see no reason to disturb the PCR judge's decision. Affirmed.
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