July 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
TAMMY HUBBARD, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2012
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-02-0601.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Nugent and Haas.
Defendant Tammy Hubbard appeals from a Law Division order that denied her petition for post-conviction relief (PCR) without a hearing. We reverse and remand for a hearing.
On September 4, 2000, police arrested defendant after she stabbed and killed a teenager. An Essex County Grand Jury subsequently charged her in a three-count indictment with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). On February 15, 2002, in a superseding indictment, an Essex County Grand Jury charged defendant with the same offenses. Defendant elected to go to trial and a jury found her guilty on all counts. Following her conviction, the trial judge sentenced her to a fourteen-year custodial term subject to the No Early Release Act, (NERA) N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction on direct appeal, State v. Hubbard, No. A-5369-02 (App. Div. Oct. 25, 2004), recounting in our opinion the events culminating in the homicide, including defendant "drinking six sixteen-ounce Bud Ice Beers and about four or five six-ounce glasses each of brandy and rum" at the party where defendant stabbed the victim. Id. slip op. At 2-3. The Supreme Court denied certification. State v. Hubbard, 182 N.J. 429 (2005).
In 2006, defendant timely filed a PCR petition, but withdrew it in 2007. The order dismissing the petition stated that the petition was being "withdrawn without prejudice to [defendant's] right to re-file as if within time and as a first PCR with all rights attendant to a first PCR." In 2008, defendant re-filed her petition and claimed that her trial counsel had been ineffective for many reasons, including his failures to challenge the indictment, properly attack the credibility of the State's witnesses, challenge at trial the misconduct of jurors, properly object to multiple instances of prosecutorial misconduct, and properly prepare a defense.
Defendant also claimed she rejected the State's plea offer to recommend a seven-year custodial term for two reasons: first, when the State initially offered the plea, she was under indictment "for the wrong body, " a situation that her attorney ignored; second, her attorney told her she could only get six or seven years by going to trial.
Lastly, defendant claimed that her sentence was excessive. Defendant presented little documentary evidence in support of her petition.
During oral argument on defendant's PCR petition, the judge questioned her about her allegation that she had initially been charged "for the wrong body, " that is, for the homicide of a victim who had a name similar to that of the victim in her case. Although the prosecutor informed the judge that information pertaining to the other individual may have been included in discovery or mentioned in the indictment, and alluded to a superseding indictment, he assured the judge that defendant had been indicted as a result of stabbing the victim in her case.
The judge also addressed defendant's refusal to accept a plea. He characterized the case against defendant as one that "screamed for a plea[.]" The judge recalled that the parties had attempted on numerous occasions to persuade defendant to accept a plea, but she adamantly refused. According to the judge, the plea was "more than fair"; but he never placed the terms of the State's plea offer on the record.
The PCR judge had presided over the trial and sentenced defendant. Noting that at trial, defense counsel had "vigorously argued that I should charge negligence" and that the jury wrestled with the verdict, the judge determined that trial counsel "did his job." He further explained that defendant had faced a maximum sentence of thirty years, and that he had given her fourteen because he felt she should have taken the plea. In denying the PCR petition, he concluded that defendant was "given a very fair plea offer, which [she] rejected, and  had a very lenient sentence in light of the conviction."
Defendant has appealed and presented the following arguments for our consideration:
THE PCR COURT ERRED IN HOLDING THAT DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARA. 10 OF THE NEW JERSEY CONSTITUTION.
(A) Defendant's Opportunity to Consider the State's Plea Offer Was Prejudiced by Her Attorney's Mis-advice During Plea Negotiations.
(B) Defendant's Opportunity to Consider the State's Plea Offer Was Prejudiced by Her Attorney's Failure to Resolve Confusion over The Issue Of The Wrong Body.
(C) Defendant Was Prejudiced by Defense Counsel's Failure to Retain an Expert Witness on the Effect Of Defendant's Intoxication.
THE PCR COURT SHOULD HAVE GRANTED AN EVIDENTIARY HEARING TO ALLOW DEFENDANT TO PRESENT TESTIMONY AS TO THE CIRCUMSTANCES UNDER WHICH SHE REJECTED THE STATE'S PLEA OFFER.
THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S PETITION FOR THE ADDITIONAL REASONS SET FORTH IN DEFENDANT'S PRO SE PETITION FOR PCR.
To prove ineffective assistance of counsel, a defendant must establish that "counsel's performance was deficient[, ]" that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). Whether a PCR hearing on an ineffective-assistance-of-counsel petition is necessary is a matter within the court's discretion. State v. Preciose, 129 N.J. 451, 462 (1992).
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief."
When a judge considers a defendant's PCR petition, "[a]s in a summary judgment motion, the  judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). With that standard in mind, we turn to defendant's claim that her trial attorney told him to reject a seven-year plea offer because she would only be sentenced to a six or seven-year prison term if convicted. That advice was indisputably inaccurate.
A defendant convicted of aggravated manslaughter under N.J.S.A. 2C:11-4a(1) "may . . . be sentenced to an ordinary term of imprisonment between 10 and 30 years." N.J.S.A. 2C:11-4c. Additionally, a defendant convicted of aggravated manslaughter under N.J.S.A. 2C:11-4a(1) must serve a minimum term of eighty-five percent of the sentence imposed. N.J.S.A. 2C:43-7.2a and d. Nothing in the record contradicted defendant's certification about what trial counsel told her. Consequently, the facts necessary to resolve defendant's prima facie claim were outside of the trial record. The court should have conducted a hearing to resolve the claim. See Preciose, supra, 129 N.J. at 462; Cummings, supra, 321 N.J.Super. at 170.
The State argues that it never offered to recommend a seven-year custodial term in return for defendant's plea; rather, it offered to recommend a ten-year term subject to NERA. But the State presented no such evidence to the judge who heard defendant's PCR petition. Consequently, the record before us demonstrates only that defendant established a prima facie claim of ineffective assistance that could not be resolved on the record before the PCR judge.
We emphasize that the record before the PCR judge, as presented here, contained no evidence of plea offers by the State, and no certification from any party as to any offers made to defendant by the State. Although the PCR judge recalled that the parties attempted to impress upon defendant the fairness of the State's plea offer, the judge did not refer to the terms of the offer. In other words, we are not presented with a situation where the PCR judge made a determination that an evidentiary hearing was unnecessary to resolve the claims for relief in light of transcripts of pre-trial conferences or competent certifications. See R. 3:22-10(b).
Defendant's remaining claims are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. To the extent defendant's pro se petition can be understood, she has not provided an adequate record or competent evidence to support her remaining claims. For example, she claims that she was initially indicted for killing a person who was not the victim, but she does not cite to either the first indictment, grand jury testimony, or any other evidence to explain her conclusory assertion. She alleges that trial counsel was ineffective for not retaining a psychiatrist to evaluate her, but she does not suggest what a psychiatrist would have said or how a psychiatric opinion might have affected the outcome of her trial. And she alleges the State failed to preserve and maintain forensic evidence, but she does not identify that evidence or explain how, if preserved, it might have led to a different verdict. Bald assertions will not support an ineffective-assistance-of-counsel claim. Cummings, supra, 321 N.J.Super. at 170.
Reversed and remanded for further proceedings consistent with this opinion.