June 20, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
THERESA WILLIAMS, a/k/a THERESA MARTIN, a/k/a BIBIHAJRA KHAN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2012
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0231.
The Rambarran Law Firm, attorneys for appellant (Angelo G. MacDonald, of counsel; Moses V. Rambarran, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
Before Judges Lihotz and Ostrer.
Defendant appeals from her conviction, following a plea of guilty, of second-degree attempt to commit extortion, N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-5. She was sentenced on June 3, 2011 as if she committed a third-degree crime, in accord with her plea agreement. She received a three-year term of incarceration.
On her direct appeal, the sole basis for challenging her conviction is the alleged ineffective assistance of her counsel. She presents the following points for our consideration:
A. APPLICABLE STANDARD.
B. BOTH PRONGS OF STRICKLAND ARE SATISFIED HERE.
1. [Counsel's] Multiple Failures Violated the First Prong of Strickland And Constituted Ineffective Assistance As a Matter of Common Sense.
a. He Totally Failed to Obtain or Investigate Readily Available Exculpatory Evidence.
b. He Made no Effort to Exploit Multiple Possible Defenses or Put The Government To Its Proofs.
c. And He Violated His Ethical Obligations to Ms. Khan.
d. [Counsel] also Deprived His Client of Her Constitutional Entitlement to Competent Advi[c]e Regarding the Immigration Consequences of Her Conviction.
2. Had [Counsel] Done His Job The Outcome Below Would Have Been Different.
Defendant essentially argues that her attorney was ineffective by failing to pursue her defense to the charge that she engaged in a scheme to extort property from an elderly woman. Defendant, born in Guyana and an undocumented immigrant, alleged in an affidavit the victim's late husband had sexually abused and exploited her as a teenager, while she served as a domestic worker in the couple's household. She asserted he made video recordings of their sexual relations. He also allegedly promised defendant $500, 000 upon his death as evidenced by certain other recordings. However, she alleged that she played no willing part in the attempt to obtain money from the widow, and actually attempted to prevent a co-defendant from showing the recordings to the woman.
Defendant also asserts that her attorney failed to adequately inform her of the immigration consequences of her plea. She was the subject of a detainer from the Immigration and Customs Enforcement Agency. Upon her release on parole in October 2011, ICE took her into custody.
Defendant argues that she has demonstrated a prima facie case of ineffective assistance of counsel, based on Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984), which requires a showing that (1) counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) defendant has suffered prejudice such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
The State argues that defendant's claim of ineffective assistance of counsel is not cognizable on direct appeal, and may be considered only in connection with a petition for post-conviction relief. We agree. The Court has expressed "a general policy against entertaining ineffective-assistance-of– counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). That is true here.
On appeal, defendant has included voluminous materials, which are outside the trial court record. Moreover, most of the evidentiary materials are simply included in the appendix without any authentication. This is plainly improper, and violates Rule 2:5-4 and Rule 1:6-6. See Catton v. N.J. Full Ins. Underwriting Ass'n, 242 N.J.Super. 5, 6-7 (App. Div. 1990) (stating it is improper for parties to submit on appeal documents not before the trial court); Celino v. Gen. Accident Ins., 211 N.J.Super. 538, 544 (App. Div. 1986) ("Facts intended to be relied on which do not already appear of record and which are not judicially noticeable are required to be submitted to the court by way of affidavit or testimony."). Moreover, defendant's ineffective assistance of counsel argument was never presented to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding generally "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest") (citation and quotation omitted).
Nonetheless, we are constrained to vacate the sentence and remand for further proceedings because defendant may have received an illegal sentence. State v. Moore, 377 N.J.Super. 445, 450 (App. Div.) ("[A] reviewing court is not free to ignore an illegal sentence.") (citing State v. Flores, 228 N.J.Super. 586, 594 (App. Div. 1988)), certif. denied, 185 N.J. 267 (2005). Although defendant entered a plea to a second-degree crime, the judge imposed a downgraded sentence within the third-degree range. See N.J.S.A. 2C:43-6a(3). The Criminal Code permits a downgraded sentence for a first- or second-degree crime only if the court is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands" the lesser sentencing range. N.J.S.A. 2C:44-1f(2). See State v. Megargel, 143 N.J. 484, 496-502 (1996) (discussing standard for imposing downgraded sentence).
Here, however, the judge sentenced defendant to three years flat, without making the requisite findings. Before imposing the sentence, the judge simply recited that he found aggravating factors three and nine, N.J.S.A. 2C:44-1a(3) (risk of reoffending) and N.J.S.A. 2C:44-1a(9) (need to deter), and mitigating factor seven, N.J.S.A. 2C:44-1b(7) (defendant has no prior criminal history or led a law abiding life for a substantial time period before committing the offense). He did not find that the mitigating factor predominated over the aggravating factors, let alone that he was clearly convinced that it did so substantially. He also made no finding regarding the "interest of justice."
Although the judge submitted a supplemental letter decision pursuant to Rule 2:5-1(b), the letter also omitted the requisite findings necessary for a downgrade. Rather, he wrote, "defense counsel acknowledged that [t]his was a contract plea. Thus, the Court sentenced the defendant in accordance with the negotiated plea agreement to three years in New Jersey State Prison."
In Moore, supra, we reversed a conviction sua sponte under similar circumstances. In that case, the trial judge expressly found the aggravating factors outweighed the mitigating factors. Id. at 451. The judge did not address the interests of justice. Yet, the judge imposed a downgraded sentence, stating "'I will follow the terms of the plea agreement.'" Ibid.
We held the sentence violated N.J.S.A. 2C:44-1f(2).
We can discern from the record no "compelling reason" for the sentence downgrade other than compliance with a plea bargain that was apparently tailored to come as close as possible to approaching the concurrent result contemplated in the earlier sentence.
The sentence before us plainly violates N.J.S.A. 2C:44-1f(2) because the court was not clearly convinced that mitigating factors substantially outweigh the aggravating factors. Indeed a contrary finding was made. Neither was the requisite determination made respecting a compelling interest of justice. Moreover, the sentence fails to conform to Megargel's carefully articulated teachings respecting a step-down sentence, as well as the substantial legislative limitations upon the court's authority to deviate from statutory sentencing guidelines. See Flores, supra.
[Moore, 377 N.J.Super. at 451.] In Moore, we vacated the defendant's sentence and remanded to permit the defendant an opportunity to withdraw his plea.
We perceive no alternative to vacating the sentence here as well. As the trial judge did not expressly balance the aggravating and mitigating factors, nor address the interest of justice standard, we remand for the court to do so. If the court cannot justify a downgraded sentence in compliance with N.J.S.A. 2C:44-1f(2) and Megargel, as well as the plea agreement, then the court shall allow defendant to withdraw her plea.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.