January 24, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-03660.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 16, 2013 -
Before Judges Axelrad and Sapp-Peterson.
Defendant Charles Davis appeals from the April 14, 2011 order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant had argued ineffective assistance of trial counsel in allegedly forcing him to plead guilty and failing to challenge the charge. We affirm.
Defendant was charged with second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and 2C:15-2 (count one); two counts of first-degree carjacking, N.J.S.A. 2C:15-2 (counts two and three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); and second-degree eluding, N.J.S.A. 2C:29-2(b) (count eight).
On March 23, 2009, defendant pled guilty to count two, first-degree carjacking, pursuant to a plea agreement. During his plea colloquy, defendant admitted: (1) he did "strike [the victim] in an attempt to take her motor vehicle"; (2) "in striking her, because of her age [and her falling down], [she] did suffer some bodily injury"; and (3) he did "then take her motor vehicle and leave the scene." On June 5, 2009, Judge Peter J. Vazquez sentenced defendant to the negotiated term of seventeen years imprisonment with an eighty-five percent parole eligibility subject to the No Early Release Act, and the State dismissed the remaining charges.
On December 6, 2010, defendant filed a pro se PCR petition and certification, alleging his trial counsel rendered ineffective assistance by: (1) coercing defendant into pleading guilty by threatening him with a life sentence, thereby rendering his guilty plea unknowing, and (2) failing to challenge the carjacking charge on the basis that the victim was not a person "in possession or control of the car" as required by N.J.S.A. 2C:15-2a(1). Defendant's PCR counsel submitted a supplemental brief that alleged defendant's plea was not knowing, voluntary, and intelligent due to trial counsel's coercion.
Following oral argument on April 14, 2011, Judge Vazquez denied defendant's PCR petition, finding defense counsel correctly advised defendant of his sentencing exposure, and the facts and case law supported the carjacking charge. This appeal ensued.
On appeal, defendant argues:
THE TRIAL COURT ABUSED ITS DISCRETION BY ACCEPTING DEFENDANT'S GUILTY PLEA BECAUSE THE PLEA FAILED TO MEET THE REQUIREMENTS OF R. 3:9-2.
A. Defendant's Guilty Plea to Carjacking Was Not Supported by an Adequate Factual Basis Where There Was No Indication That the Victim Was "An Occupant or Person in Possession or Control Of a Motor Vehicle" as Required under N.J.S.A. 2C:15-2a(1) (Not Raised Below).
B. The Defendant's Guilty Plea Was Not Knowing, Voluntary, and Intelligent Because He Was Not Properly Advised of the Penal Consequences of His Plea and Trial Counsel Coerced the Plea by Threatening the Defendant with Life Imprisonment (Raised in Part Below).
THE PCR COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S PCR PETITION WITHOUT AN EVIDENTIARY HEARING WHERE THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Defendant's Plea Counsel Improperly Advised Defendant to Plead Guilty to Carjacking Without First Contesting the Carjacking Charges in Counts 2 and 3 of the Indictment.
B. Defendant's Plea Counsel Failed to Correctly Advise Him of the Penal Consequences of His Plea and Coerced the Defendant into Accepting the Guilty Plea by Threatening Him with Life Imprisonment.
ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT APPEAL.
Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments. We affirm substantially for the reasons articulated by Judge Vazquez in his comprehensive oral opinion. We add the following brief comments.
Judge Vazquez was involved in this case from the outset of the plea through the PCR proceeding. As such, we accord a degree of deference to his findings respecting the sufficiency of defendant's factual allocution and the voluntariness of his plea. See State v. Marshall, 148 N.J. 89, 186 (1997) (affording "special weight" to a PCR court's finding respecting issues initially determined by the same trial judge). Defendant completed a plea form, and on the record expressly acknowledged that he understood all the terms and conditions of the plea, that he entered the plea "entirely voluntarily," and that he was not "threatened" by "anyone" to plead guilty.
As Judge Vazquez properly found, trial counsel was duty bound to let defendant know the extent of his maximum exposure. Because defendant would have been mandatorily extended-term eligible if he were convicted of first-degree carjacking and had prior convictions for at least two first-degree robberies on two separate occasions, "advising  defendant that he faced life in prison was not only not threatening, it was necessary for her to do what she's required to do ethically and professionally." Defendant has failed to demonstrate ineffective assistance of trial counsel in this regard under either prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
We are also satisfied the record clearly supports Judge Vazquez's finding that defendant's factual basis was sufficient to support his plea to carjacking pursuant to N.J.S.A. 2C:15-2(a)(1), and that the facts and subsection under which defendant was charged are analogous to State v. Matarama, 306 N.J. Super. 6 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998), rather than State v. Jenkins, 321 N.J. Super. 124 (App. Div.), certif. denied, 162 N.J. 197 (1999).*fn1 Under N.J.S.A. 2C:15-2(a)(1), the charge to which defendant pled, a person is guilty of carjacking when "in an attempt to commit an unlawful taking of a motor vehicle he . . . inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle."
We have held that an individual does not need to be physically within the structure of a vehicle to be considered an occupant under this statutory language. State v. Williams, 289 N.J. Super. 611, 616 (App. Div.), certif. denied, 145 N.J. 375 (1996).
In Matarama, we found the evidence sufficient to establish carjacking under subsection (a)(1) where the victim had parked the car across the street from her home, locked the car and crossed the street, and was beaten by two men when she refused to turn over her car keys when she was attempting to open her front door. Supra, 306 N.J. Super. at 12-13. In the present case, considering the victim's written statement to police after the carjacking that she was "10 feet from her vehicle, standing on her front porch" when the carjacking occurred, see State v. Mitchell, 126 N.J. 565, 581-82 (1992), coupled with defendant's admission to attacking the victim for the express purpose of obtaining her motor vehicle, after which he took her car and left the victim's residence, Judge Vazquez properly relied upon Matarama to support the conviction.
To the extent defendant claims ineffective assistance of counsel in failing to challenge the sufficiency of the carjacking charges contained in the indictment, his claim is meritless. R. 2:11-3(e)(2). Any other claims asserted by defendant are also without merit and defendant has failed to establish by any of those claims a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).