September 30, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CARLOS CUTLER a/k/a HASSAN MUMIN, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 01-08-1608 and 01-10-2003.
Joseph E. Krakora, Public Defender, attorney for plaintiff (Monique Moyse, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Guadagno.
Defendant Carlos Cutler appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with two first-degree robberies, first-degree conspiracy to commit robbery, third-degree criminal restraint, fourth-degree aggravated assault with a firearm, second-degree unlawful possession of a firearm, third-degree unlawful possession of a handgun and second-degree certain persons not to have a weapon. An unrelated indictment charged defendant with four counts of drug offenses, including second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility.
On November 13, 2002, pursuant to negotiations with the State, defendant pled guilty to one count of first-degree robbery, N.J.S.A. 2C:15-1, and to third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). As to the former, defendant and two cohorts bound and robbed five occupants of an Atlantic City casino hotel room at gunpoint. Defendant was later apprehended by casino hotel security, arrested, and found to have a chain belonging to one of the victims on his person. In return for his plea, the State agreed to dismiss the remaining counts of the two indictments and to recommend an aggregate twelve-year term with an eighty-five percent parole disqualifier. Defendant was continued on bail and sentencing was scheduled for January 10, 2003.
Defendant failed to appear for sentencing and became a fugitive. He was apprehended four years later in Maryland and extradited to New Jersey. On the day of sentencing, October 18, 2007, defendant moved pro se to withdraw his guilty plea, alleging that he was coerced into pleading guilty. The court denied the motion, finding defendant voluntarily and knowingly entered into the plea agreement, and sentenced defendant in accordance therewith to a twelve-year term subject to the eighty-five percent parole disqualifier on the armed robbery offense and a concurrent four-year term on the drug crime.
Defendant's appeal was heard on our Excessive Sentence Oral Argument (ESOA) calendar pursuant to Rule 2:9-11. In affirming the conviction, we expressly found "no error in the trial court's denial of defendant's motion to withdraw his guilty plea."
On July 20, 2010, defendant filed a timely PCR petition wherein he alleged ineffective assistance of plea, sentencing and appellate counsel. As to the former, defendant claimed plea counsel coerced him into pleading guilty and allowed him to be misinformed as to his potential sentencing exposure if found guilty at trial. Defendant also criticized sentencing counsel for failing to effectively advocate for his withdrawal motion, and appellate counsel for failing to appeal fully, denial of that motion.
After a non-evidentiary hearing, the PCR judge denied defendant's petition. He found the claim of ineffective assistance of plea counsel was essentially identical to the claim of coercion that formed the basis of defendant's motion to withdraw his guilty plea, and therefore held the claim to be procedurally bared under Rule 3:22-5 as previously rejected by the sentencing judge and this court. Substantively, the PCR judge found the claim to be without merit as belied by the plea transcript and agreement themselves, both of which revealed a knowing and voluntary guilty plea. As for the claim that defendant was misinformed of his sentencing exposure upon a conviction at trial, the PCR judge noted:
As a preliminary point, the [c]ourt, and not [plea counsel], informed [defendant] as to his 68-year sentencing exposure. Thus, any inaccuracy of that stated exposure would have been the fault of the [c]ourt's and not of [defendant's] trial counsel.
[In any event, ] [t]he State correctly stresses that [defendant] had been indicted for eight (8) charges and that there were five (5) victims in the case, two proper considerations under [State v.] Yarbough, [100 N.J. 627 (1985)].
Taking into consideration the other charges involved, [defendant] may have been sentenced to consecutive terms on the other charges had he been convicted because the crimes involved separate acts of violence, involved multiple victims, and constituted numerous convictions. . . .
The PCR court similarly rejected defendant's claim of ineffective assistance of sentencing and appellate counsel, finding, as to the former, no support in the record. As to the latter, the judge held that the issue of the denial of defendant's withdrawal motion was in fact raised and considered on appeal and that:
Furthermore, even if appellate counsel failed to pursue the issue on appeal, [defendant] has not demonstrated that this constituted an unreasonable performance or that the result of his appeal would have been different. In fact, the result of [defendant's] appeal would not have been different as any appeal of the issue would have been meritless for the aforementioned reasons and appellate counsel is not ineffective for failing to pursue a meritless claim.
On appeal, defendant reiterates the same issues he raised below:
I. PLEA COUNSEL, SENTENCING COUNSEL, AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY COERCING MR. CUTLER INTO ENTERING A GUILTY PLEA, ADVOCATING AGAINST HIM REGARDING HIS PRO SE MOTION TO WITHDRAW HIS GUILTY PLEA, AND FAILING PROPERLY TO APPEAL HIS MOTION TO WITHDRAW HIS PLEA.
II. ALL CLAIMS IN MR. CUTLER'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL.
We find no merit to these contentions. R. 2:11-3(e)(2).
It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203, 208-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
The transcript of the plea hearing simply does not support defendant's claims of coercion and misinformation. As to the latter, defendant offers no competent proof by way of certification or affidavit that plea counsel or the court for that matter misadvised or misinformed him of the penal consequences of a conviction at trial. In fact, defendant has failed to proffer the transcript of a September 27, 2002 pretrial conference wherein defendant was likely properly advised of his sentencing exposure if convicted at trial. In any event, defendant's sentencing exposure was significant indeed, given the seriousness of the crimes with which he was charged, the number of victims involved, and his rather substantial arrest and adjudicated juvenile history. In the face of such a lengthy sentence, it is simply implausible for defendant to argue that he would have rejected the certainty and lenity of a twelve-year term in favor of proceeding to trial.
Defendant's claim of ineffective assistance of sentencing counsel fares no better. Contrary to defendant's assertion, sentencing counsel did in fact advance the argument that defendant did not believe that plea counsel was acting in his best interests, that he felt coerced to enter a guilty plea, and that he wished to withdraw his plea. In any event, defendant suffered no prejudice because his withdrawal motion lacked any merit as failing to meet any of the criteria of State v. Slater, 198 N.J. 145, 157-58 (2009). On this score, defendant never asserted a colorable claim of innocence nor substantiated his reasons for withdrawal. Moreover, the very existence of the plea bargain militated against withdrawal of defendant's guilty plea as did the potential prejudice to the State arising from the passage of eleven years since commission of the instant crimes.
Lastly, defendant's claim of ineffective appellate counsel is equally meritless. The record reveals appellate counsel argued the merits of defendant's withdrawal motion, which we considered and rejected. Furthermore, defendant failed to demonstrate how the filing of a petition of certification to the Supreme Court would have changed the outcome.