September 10, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
IKEEM HANDY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-04-0648.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Espinosa and Hoffman.
Defendant appeals from the January 19, 2012 Law Division order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. For the reasons that follow, we affirm.
On April 19, 2007, a Middlesex County Grand Jury returned Indictment No. 07-04-648, charging defendant Ikeem T. Handy, and co-defendant, Rahsaan B. Anderson, with: first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1) (count four); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count five).
On the same day, a Middlesex County Grand Jury returned Indictment No. 07-04-654, a one count indictment charging defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.
Both indictments stemmed from the January 27, 2007 robbery of a gas station in North Brunswick. At about 7:50 p.m. on that date, North Brunswick police were dispatched to the gas station at Georges Road and Route 1, in response to a report of a robbery.
The alleged victims of the robbery told police that two men, later identified as defendant and Anderson, entered the station with a gun and demanded money. The victims maintained that, after they turned over about $40, defendant handed the gun to Anderson, who unsuccessfully attempted to shoot open a locked door. Anderson also took a green bank money bag. Defendant and Anderson fled in a Jeep, and the victims pursued them, calling the police as they followed. Defendant and Anderson eventually abandoned the Jeep, and the police found defendant nearby, hiding in a dumpster. The police recovered the money bag, $51 in cash, and two black ski masks.
On February 8, 2008 defendant entered into a plea agreement with the State whereby he pled guilty to two charges: count one of Indictment No. 07-04-648 (armed robbery) and Indictment No. 07-04-658 (certain persons). The State agreed to recommend a sentence of ten years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the armed robbery count, and a consecutive term of five years in prison, with a five-year parole bar, on the certain persons not to have weapons charge.
On February 8, 2008, defendant entered guilty pleas to armed robbery and to the certain persons charge. The plea judge elicited a factual basis from defendant in support of these pleas.
Consistent with the plea agreement, on March 13, 2008 the same judge sentenced defendant on the armed robbery count to a term of ten years, subject to NERA, and a consecutive term of five years, with a five-year period of parole ineligibility, on the certain persons charge.
Defendant did not file a direct appeal following his sentencing. On April 4, 2011, defendant filed a pro se petition for PCR alleging that he received ineffective assistance from his plea attorneys. The court appointed counsel to represent defendant on his petition.
On January 19, 2012, Judge Alan A. Rockoff heard argument from counsel, and then denied defendant's petition, without an evidentiary hearing. Judge Rockoff rejected defendant's contention that he was misadvised by counsel as to the consequences of his plea, pointing out that both the plea colloquy and the plea form indicated that the sentences for robbery and certain persons charges were to be consecutive. Judge Rockoff dismissed the inadequate investigation claim as a mere assertion by defendant.
Judge Rockoff further found that the sentencing judge's reference to not being able to find the complaining witnesses to inquire about possible restitution was insufficient to conclude that trial counsel should have considered witness unavailability before permitting defendant to enter his pleas.
Judge Rockoff also rejected defendant's claim regarding the failure to file an appeal, concluding that defendant could not show that the result of the proceeding would have been different had an appeal been filed.
On appeal, defendant raises the following issues:
DEFENDANT ESTABLISHED A PRIMA FACIA CLAIM FOR POST-CONVICTION RELIEF.
A. Plea Counsel Provided Erroneous Information.
B. The Guilty Pleas Lacked a Proper Factual Basis.
C. Counsel's Failure to Investigate.
D. The Failure to File an Appeal.
We conclude these arguments lack merit, and affirm the denial of PCR substantially for the reasons stated by Judge Rockoff in his cogent oral opinion issued on January 19, 2012. We add the following.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.
To establish that his attorney's performance was deficient, a defendant must show that his attorney's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. In addition, to show that he was prejudiced by the deficient performance of his attorney, a defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
While a "claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[, ]" it remains within the court's discretion to determine whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2013). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).
Defendant argues that he was denied the effective assistance of counsel because his plea attorney permitted him to enter a plea which lacked a proper factual basis. We disagree.
In accepting a guilty plea, a trial court must be satisfied that there is a factual basis for each element of the offense. State v. Campfield, 213 N.J. 218, 232 (2013). In other words, the factual basis provided must permit the trial court to find that the defendant is guilty of the crime charged. Id. at 231. In reviewing a trial court's decision to accept a factual basis, an appellate court affirms if there is sufficient credible evidence to support the determination. Id. at 229. We defer to the trial court's findings on matters affected by the judge's feel for the case and opportunity to observe the testimony, but we do not defer to the judge's legal determinations. Id. at 229-30.
Although the "law requires that each element of the offense be addressed in the plea colloquy[, ]" id. at 231, "[t]hat does not mean that a court must follow a prescribed or artificial ritual." State ex rel. T.M., 166 N.J. 319, 327 (2001). This is because "different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, [and] a factual basis, established . . . through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy." Ibid. Moreover, "[e]very alleged deficiency in the taking of a factual basis does not constitute reversible error. Only in those instances where the failure rises to constitutional dimensions is the sentence rendered illegal." State v. Pena, 301 N.J.Super. 158, 163 (App. Div.), certif. denied, 151 N.J. 465 (1997).
When faced with a defendant's claim that his factual basis was insufficient, the Supreme Court has considered "the context of the entire plea colloquy[, ]" including "the rather extensive discussion between the court and [the] defendant concerning the written plea agreement that [the] defendant signed and [the] defendant's consultations with his attorney[.]" State v. Smullen, 118 N.J. 408, 415 (1990).
Here, the plea form lists the charges to which defendant was pleading guilty as well as the terms of the plea agreement. Moreover, nothing in the record suggests that defendant was unsure whether his conduct actually fell within the charge. See State v. Pineiro, 385 N.J.Super. 129, 137 (App. Div. 2006).
In his certification in support of his PCR petition, defendant did not claim that he did not understand the factual basis the judge elicited from him. At the plea hearing, defendant admitted that he was with his codefendant, Rahsaan Anderson, on January 27, 2007. Defendant admitted that his codefendant had a "piece, " or gun, and that the codefendant's purpose was to steal the illegal stash, called "clocking, " of the victim. Defendant admitted his codefendant fired the gun. He also admitted that what they stole from the victim was "junk." Defendant admitted he acted as his codefendant's accomplice in the armed robbery. Defendant also admitted that he was a convicted felon and that he was not permitted to possess a firearm. Finally, defendant admitted that as his codefendant's accomplice he was in the possession of the firearm.
We are satisfied that the plea judge elicited an adequate factual basis to support defendant's guilty pleas The record shows no evidence to support defendant's claims of ineffective assistance of counsel No evidentiary hearing was required To the extent we have not addressed defendant's remaining arguments we find them without sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(2)