July 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALQUAN GORDON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-11-04566.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2012 -
Before Judges Ashrafi and Fasciale.
Defendant Alquan Gordon appeals from a September 20, 2010 order denying his petition for post-conviction relief (PCR). We reverse.
In 2001, defendant was indicted on charges of first-degree attempted murder, N.J.S.A. 2C:5-1, 11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The indictment arose from the December 2000 shooting of an acquaintance of defendant after a dispute in a bar. Defendant lured the victim to a place from which he retrieved a gun and then shot the victim in the back of the neck. After the shooting, defendant dragged the victim to a vacant lot and left him to die in the rain. The victim survived but was paralyzed. He died sometime after defendant's trial in 2003, although the cause of death is not revealed in our record, and we do not mean to suggest that death resulted from the shooting.
Defendant was tried in absentia and convicted on all charges in the indictment. At defendant's sentencing on August 1, 2003, the court merged the aggravated assault and the second-degree weapons charges with the attempted murder conviction and sentenced defendant to an extended term sentence, pursuant to N.J.S.A. 2C:44-3a, of fifty-five years imprisonment with seventeen years of parole ineligibility. A concurrent term of five years imprisonment was imposed on the other weapons charge.
We affirmed the conviction and sentence on direct appeal, State v. Dwight,*fn1 378 N.J. Super. 289 (App. Div. 2005), and the Supreme Court denied defendant's petition for certification, State v. Dwight, 185 N.J. 391 (2005). Defendant then filed a PCR petition on June 23, 2006, alleging ineffective assistance of counsel. An attorney was appointed to represent him for the PCR petition. The trial court held an evidentiary hearing on four dates over a two-year period on the issues raised in the PCR petition. Defendant and his court-appointed trial attorney testified on behalf of defendant. The State presented no witnesses.
Defendant testified that he would have accepted the prosecution's plea offer of ten years imprisonment if his trial attorney had not misinformed him about his exposure to an extended term sentence. He testified that he specifically asked his trial attorney during the time of plea negotiations whether he was subject to an extended term sentence and his attorney incorrectly told him that he was not.
His trial attorney confirmed that defendant had inquired and that he had given incorrect information to him about exposure to an extended term sentence. The error pertained to the discretionary extended term statute applicable to a persistent offender, N.J.S.A. 2C:44-3a. The statute permits the imposition of a longer term of imprisonment if a defendant stands convicted of a third-degree or more serious crime, was at least twenty-one years old at the time he committed the crime, had at least two prior indictable convictions after the age of eighteen committed at different times, and committed the crime for which the extended term is imposed within ten years of his last prior crime or release from custody. Ibid.
At the PCR hearing, defendant's trial attorney gave a detailed explanation of how the error occurred. In 2002, the attorney was receiving court-appointed assignments as a "pool" attorney working in conjunction with the Public Defender's Office. On November 4, 2002, he was substituted for the Public Defender's Office to represent defendant, whom he knew as Alquan Dwight. At the time of his appointment, at least two sets of charges were pending against defendant, the most immediate of which was the attempted murder indictment arising from the December 2000 shooting. The trial attorney reviewed defendant's file on that case and saw that he had one prior indictable conviction on his record, a 1996 conviction for third-degree receiving stolen property. Therefore, defendant was not subject to the persistent offender statute when the attorney initially began representing him. However, the attorney candidly admitted at the PCR hearing that he should have realized that defendant could become subject to the persistent offender statute upon his conviction on one of the other charges that were then pending against him.
At a scheduled pretrial conference pursuant to Rule 3:9-1(c), held on November 18, 2002, the trial attorney requested that the judge grant him more time to become familiar with the case and to discuss with defendant the prosecution's plea offer. The court granted the request, indicating that plea negotiations would not be cut off, in accordance with Rule 3:9-3(g), until Friday of that week, November 22, 2002. The court also discussed with defendant on the record his sentencing exposure on the attempted murder and related charges, stating that he faced up to thirty years in prison if he went to trial and was convicted.
At the time of the pretrial conference on November 18, 2002, the trial attorney had completed a pretrial memorandum form and discussed it with defendant. The pretrial memorandum contained a series of questions and answers, and information related to the charges. It stated that the maximum sentence defendant was facing was thirty years imprisonment with twenty-five-and-a-half years of parole ineligibility under the "85% Law" (the No Early Release Act, N.J.S.A. 2C:43-7.2). The memorandum also recited the terms of the prosecution's plea offer of ten years "w[ith] 85%" and asked whether defendant understood "that if you reject this plea offer, the Court could impose a more severe sentence than recommended by the plea offer, up to the maximum sentence permitted if you are convicted after trial?" The answer "yes" was circled. Also crucial for purposes of the PCR petition, the pretrial memorandum included the answer "no" to the question "Does the defendant qualify for an extended term?" Defendant initialed each page of the pretrial memorandum and signed the last page.
On November 22, 2002, defendant appeared in court, but his attorney was not present. The court adjourned the plea cutoff date to December 6, 2002.
On December 6, defendant again appeared before the court, this time with his attorney. The court first attended to sentencing defendant on one of the other pending charges, third-degree burglary, to which defendant had entered a plea of guilty a year earlier, that is, long before his trial attorney had been substituted to represent him. At the PCR hearing, the trial attorney testified that he was not aware that sentencing on the burglary charge was scheduled to occur on December 6, 2002, until he appeared in the courtroom on that date to handle other matters. Nevertheless, he discussed the sentencing matter with defendant and proceeded with it on that date without objection by defendant.
The burglary charge arose from an October 2000 arrest of defendant for a domestic violence incident. He had unlawfully entered a home with the intent to harm his girlfriend, who was being hidden there, and he had assaulted other persons in that home. In accordance with defendant's plea agreement on that charge, the court sentenced him to a term of probation. Because the burglary had occurred within ten years of the December 2000 attempted murder offense of this case, and because it became a second prior conviction of defendant upon his being sentenced on December 6, 2002, defendant became eligible under N.J.S.A. 2C:44-3a for a discretionary extended term on the attempted murder charge.
Immediately after the sentencing at the December 6, 2002 proceedings, the court completed the pretrial conference and plea cutoff for the separate attempted murder indictment. Neither attorney raised the matter of defendant's changed status and exposure to an extended term sentence because he now had two prior convictions. The judge signed the pretrial memorandum that had been prepared on November 18, 2002, and set a trial date in January 2003.
The trial date was later adjourned to March 10, 2003. Defendant failed to appear in court for the adjourned trial date. He was tried in absentia, but the jury did not reach a unanimous decision. He was promptly tried a second time in absentia. The second jury found him guilty of attempted murder and the other charges on April 23, 2003.
Defendant was arrested on a bench warrant on May 20, 2003. At the time of his arrest, in addition to the charges on which the jury had found him guilty, defendant had pending another set of charges that included a different attempted murder charge.
The prosecutor promptly filed a motion for an extended term sentence under N.J.S.A. 2C:44-3a on the attempted murder charge on which defendant had been tried and found guilty. At the PCR hearing several years later, defendant testified that he was surprised and did not understand why he was subject to an extended term sentence when his trial attorney had told him otherwise. He confronted the attorney, who advised him to concentrate instead on his defense of the still-pending attempted murder charge and also told him that the extended term statute was discretionary and the judge might not impose an enhanced prison sentence. Defendant did not pursue the issue of his eligibility for an extended term before or at the time of his sentencing on August 1, 2003.
Sometime after he was sentenced to an extended term of fifty-five years imprisonment with seventeen years of parole ineligibility, defendant reviewed the pretrial memorandum that had been executed in November and December 2002. With the advice of paralegals in prison, and upon learning of a similar issue discussed in State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002), rev'd after remand, 200 N.J. 183 (2009), defendant pursued a claim of ineffective assistance of counsel by means of the PCR petition that he filed in June 2006.
On appeal, defendant makes the following argument:
THE PCR COURT ERRED IN DENYING MR. GORDON'S PETITION BECAUSE HIS ATTORNEY IMPROPERLY ADVISED HIM THAT HE WAS NOT EXTENDED TERM ELIGIBLE BEFORE TRIAL, AND MR. GORDON WOULD HAVE AND COULD HAVE PLED GUILTY HAD DEFENSE COUNSEL PROPERLY INFORMED HIM OF HIS EXTENDED TERM ELIGIBILITY.
We need not recite in this opinion the standard for a showing of ineffective assistance of counsel as firmly established by Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694-95, 698 (1984), pursuant to the Sixth Amendment of the United States Constitution, and by State v. Fritz, 105 N.J. 42, 51-52 (1987), pursuant to Article 1, paragraph 10 of the New Jersey Constitution. The State concedes in its appellate brief that the facts recited here would constitute ineffective assistance of counsel and entitle defendant to remedies if they are accurate. The State argues, however, that the testimony of defendant and his trial attorney is not credible in contending that defendant did not know, and the two did not discuss before defendant's rejection of the ten-year plea offer, that defendant was subject to an extended term sentence.
The trial judge agreed with that argument. In an oral decision placed on the record on September 17, 2010, the judge found that defendant and his trial attorney must have discussed his extended term eligibility after the December 6, 2002 sentencing on the burglary charge. The judge disbelieved their testimony because it seemed unreasonable and illogical that the attorney would not have been aware of and discussed with defendant the consequence of his sentencing on December 6, 2002, and conviction on the burglary charge. The judge noted that defendant had expressed concern about his exposure to an enhanced sentence as early as November 4, 2002, and the attorney was aware of that concern. Furthermore, the judge discredited the attorney's testimony that he continued to be unaware of the mistaken advice he had given, even after the prosecution filed a motion for an extended term sentence in May 2003. The attorney had testified that he became aware of his error at a later time when he and defendant reviewed the pretrial memorandum he had prepared for the November 18, 2002 proceeding.
We are fully cognizant of our limited role as an appellate court in reviewing findings of fact and credibility determinations of a trial judge. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 471 (1999). We must defer to the fact findings of a trial judge who has held an evidentiary hearing on a PCR petition and assessed the credibility of witnesses. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); see Locurto, supra, 157 N.J. at 474 (particular deference to the credibility determinations of the trial court). Our Supreme Court has stated:
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions."
[Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).]
In this case, to affirm the trial court's findings that the trial attorney did not testify accurately at the PCR hearing, "we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions." State v.
W.B., 205 N.J. 588, 603 n.4 (2011) (citing Elders, supra, 192 N.J. at 242-44; State v. Godfrey, 131 N.J. Super. 168, 174-75 (App. Div. 1974), aff'd o.b., 67 N.J. 267 (1975)). Having reviewed the record of the PCR hearing and the earlier proceedings on the attempted murder charge, we are unable to find any evidence to sustain the trial judge's finding that the trial attorney testified falsely on the central issue in the case - whether he had advised defendant that he was exposed to an extended term sentence while defendant still had an opportunity to accept the prosecution's plea offer.
First, we reject emphatically the State's argument made in its appellate brief that the trial attorney may have been influenced to testify falsely by motivation for personal gain or fear of defendant. Such contentions have no evidential support in the record. They are inappropriate accusations against the attorney and defendant without factual support.
In fact, our review of the lengthy transcripts leads us to view the trial attorney's testimony as very candid and forthright. On three different dates of testimony at the PCR hearing, the trial attorney repeatedly confirmed that he had failed to advise defendant accurately about the consequences of his December 6, 2002 sentencing with respect to the persistent offender statute. There was no equivocation in his testimony or attempts to evade questions from the attorneys and the trial judge. The attorney was fully responsive, direct, and straightforward. He was willing to admit a mistake despite its potential detrimental effect upon his professional reputation, and he was cooperative in obtaining as much information from the existing records as could be gathered to clarify uncertainties and ambiguities in what had occurred several years earlier.
The trial court found the attorney's testimony to be unreasonable and illogical. However, the court did not seem to consider the apparent oversight of all who were involved in the pretrial proceedings, perhaps because of the concurrence of events leading to defendant's extended term eligibility. Initially at the pretrial conference in November 2002, defendant was not subject to persistent offender sentencing under N.J.S.A. 2C:44-3a because he had only one prior conviction on his record. Although the burglary charge was pending, the prosecutor misstated its severity at the November 18, 2002 pretrial conference, stating inaccurately that "defendant pled guilty to . . . a D.P. [disorderly persons] trespassing" and was awaiting sentencing on that charge.
On the burglary charge, the December 6, 2002 sentencing resulted in a probationary sentence in accordance with defendant's existing plea agreement, and no one became immediately aware that the sentencing and entry of a judgment of conviction changed defendant's status as to eligibility for an extended term sentence. The plea offer from the prosecution on the attempted murder charge remained ten years imprisonment with eighty-five percent to be served before parole. The previously-prepared pretrial memorandum was not corrected to indicate that defendant now faced a potential extended term sentence. The overlap in time of the several pending charges may have initially misled both attorneys in recognizing the effect of the sentencing on the burglary charge with respect to defendant's future sentencing exposure on the attempted murder charge.
The later failure of defendant's trial attorney to recognize the mistake and attempt to correct it before the August 2003 sentencing is explained by the fact that defendant had yet an additional attempted murder charge pending and that charge was the attorney's primary focus. It may have been ineffective assistance for the attorney not to understand his earlier error and to attempt to correct it before the sentencing, but the reason the error occurred was rationally explained and was not inherently incredible.
Most important, the documentary and transcript record fully supports the attorney's and defendant's contention that defendant received incorrect information about his maximum exposure before plea negotiations ended. The pretrial memorandum signed by defendant, both trial attorneys, and the judge is explicit in its representation that defendant's maximum exposure at trial would be thirty years imprisonment. It is explicit in stating that defendant did not qualify for an extended term. The judge's direct remarks to defendant on November 18, 2002, also explicitly put him on notice of a maximum thirty years of imprisonment if he rejected the plea offer and stood trial. That information from the court was not corrected and modified at the December 6, 2002 pretrial conference or at any other time before defendant's trial.
No evidence in the record supports the prosecution's contention that the trial attorney must necessarily have discussed defendant's exposure to an extended term sentence before defendant rejected the plea offer. This is the rare appeal where the record "instill[s] a 'feeling of wrongness'" in the trial court's credibility determinations and finding of fact that such a discussion must have occurred. Harris, supra, 181 N.J. at 417 (quoting Johnson, supra, 42 N.J. at 162).
The failure of a criminal defense attorney to provide accurate information to his client about a plea offer and the consequences of rejecting the offer may constitute ineffective assistance of counsel. Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406 (2012); Taccetta, supra, 351 N.J. Super. at 200. Here, with the full support and admissions of his trial attorney, defendant proved that he received incorrect information about his maximum sentencing exposure and, therefore, ineffective assistance in deciding to reject the prosecution's ten-year plea offer. He is entitled to an appropriate remedy to correct the constitutional violation.
The remedy, however, need not be that the jury's verdict of guilty must be vacated and defendant must receive a new trial. The United States Supreme Court has stated that a remedy for ineffective assistance of counsel "must 'neutralize the taint' of a constitutional violation . . . while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution." Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1388-89, 182 L. Ed. 2d at 411 (quoting United States v. Morrison, 449 U.S. 361, 365, 101 S. Ct. 665, 668, 66 L. Ed. 2d 564, 568 (1981)).
Here, the record allows no dispute that defendant believed he was exposed to a maximum of thirty years imprisonment if he went to trial. He rejected the plea offer and stood trial with that understanding. He is not entitled to a windfall of a maximum ten year sentence in accordance with the plea agreement he rejected or, alternatively, a new trial years after the victim has died. Rather, the appropriate remedy in these circumstances is that his sentencing exposure cannot exceed the thirty years as explained to him at the time of the pretrial conference.*fn2 He is entitled to resentencing within the terms of the plea negotiations. See id. at ___, 132 S. Ct. at 1389, 182 L. Ed. 2d at 412.
We reverse and remand to the trial court for resentencing of defendant. We do not retain jurisdiction.