December 16, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LORENZO CARTER, a/k/a ANTHONY RICHARDS, WATERMOUTH, JUNIOR JACKSON, RAYMOND JACKSON, DUDLEY JACKSON, REGINALD CASPER GRAND, REGINALD GRANT, R. GRANT, SCOTT DELROY, DELROY SCOTT, LORENSE CORTES, JUNIOR RICHARDSON, MORLAND RICHARDSON, EDDIE WHITE, EDDIE FRANK WHITE, JR., and ALEX HOUSEN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 79-06-0974.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez and Carroll.
The Atlantic County grand jury returned Indictment No. 79-06-0975 against defendant Lorenzo Carter in connection with a March 29, 1980 shooting, which resulted in the death of Everton Kelly and the wounding of John Sessoms. Specifically, the indictment charged defendant with one count of unlawful possession of a handgun, N.J.S.A. 2C:29-5d (Count One); two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4 (Counts Two and Four); one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); and one count of knowing or purposeful murder, N.J.S.A. 2C:11-3 (Count Five).
Defendant was a fugitive on these charges for some thirty years until he was apprehended in New York in February 2010. He retained counsel, who in a series of pre-trial motions was successful in suppressing evidence seized from defendant's residence based on a defective search warrant, and compelling the State to provide current addresses for the witnesses it intended to call at trial.
Trial commenced with jury selection on May 15, 2012, followed by opening statements and witness testimony on May 16, 2012. On May 17, 2012, after an adverse ruling on an inlimine motion, defendant pled guilty to Count Three, and to aggravated manslaughter, as a lesser-included offense of Count Five. In return, the State agreed to dismiss the remaining counts of the indictment, as well as a separate indictment charging a drug offense. The State also recommended that defendant be sentenced to twelve years imprisonment on the aggravated manslaughter charge, and a consecutive eight-year term on the aggravated assault charge. Under the sentencing laws in effect at the time these crimes were committed, they carried no mandatory period of parole ineligibility.
Before Judge Kyran Connor, and represented by counsel, defendant acknowledged his understanding of the plea agreement, and that he could have received thirty-years imprisonment, with fifteen-years of parole ineligibility, if convicted on the more serious murder charge. Defendant indicated he was not a United States citizen, and acknowledged that it was likely he would be deported as a consequence of his guilty plea. He further acknowledged that he might be required to serve additional prison time on an outstanding Arizona warrant.
On the plea form, and in his colloquy with the court, defendant reiterated that he understood the charges and his rights, including his right to continue the trial; understood his sentencing exposure; and was pleading guilty voluntarily, because he was in fact guilty of the charges. Further, defendant indicated that he had reviewed the discovery with his attorney, and was satisfied with counsel's services. As to a factual basis for his plea, defendant admitting shooting into the victims' car from a distance of approximately three feet. Five shots struck and wounded Sessoms. Kelly, who was a passenger seated next to Sessoms in the vehicle, was shot twice and killed.
On June 1, 2012, defendant addressed a letter to the court, essentially indicating that although he originally agreed to an earlier offer of a twelve-year flat sentence supposedly extended by the State, he was misled by counsel and forced to go to trial. In this letter, defendant did not seek to withdraw his guilty plea. Rather, he asked for "a plea consideration when [I] come to court for sentenc[ing]."
At the sentencing hearing on June 22, 2012, defendant addressed the court with respect to his earlier letter. According to defendant, he did not have the opportunity to accept a more favorable plea offer extended by the State in September 2011, because his family was unable to communicate his acceptance of that offer to defense counsel until after the State's deadline to take the plea had passed. The judge then engaged defendant in the following colloquy:
THE COURT: All right. So what's your point today? You say you wanted to take the offer last fall but it didn't happen for the reasons you're talking about.
MR. CARTER: Yes, Sir.
THE COURT: So what are you saying about today in the plea agreement that you reached in this case, you know, last month?
MR. CARTER: The plea agreement I reached in this last month?
THE COURT: In other words, during the trial, we stopped the trial, you pled guilty.
MR. CARTER: Yes, Sir.
THE COURT: What are you telling me about the plea bargain that you actually took?
MR. CARTER: I'll accept what I took last month.
When asked by the court if he wished to offer any response, defense counsel replied that he had arranged a telephone conference with defendant to discuss the State's previous offer. Defendant at that time rejected the offer, apparently on the advice of other prisoners, and continued to maintain his innocence. Defense counsel memorialized all of his plea discussions in writing with defendant.
After defendant and counsel concluded their remarks, the court stated:
That being said, you know, the bottom line is I don't know why it was really necessary to have this conversation because Mr. Carter isn't suggesting, it appears, that he would like to withdraw his plea and that really is the ultimate point  for us to be focused on. Even if he had expressed an interest in withdrawing his plea, that would be  perhaps a first step in an inquiry as to whether that would be relief that was available to him. It's certainly not an automatic result anytime a defendant expresses some reservations as this one did here.
The court then proceeded to sentence defendant to an aggregate twenty-year prison term, consistent with the plea agreement. The judge noted that defendant, then fifty-seven years old, had been a fugitive on these charges for nearly thirty years. The judge concluded that the aggravating factors outweighed the mitigating factors, citing defendant's record of fifteen arrests, four convictions, and his pending charge in Arizona.
Before us, defendant contends that:
JUST BEFORE SENTENCE WAS IMPOSED, DEFENDANT RAISED A SIGNIFICANT ISSUE WITH RESPECT TO HIS TRIAL ATTORNEY'S FAILURE TO PROPERLY COMMUNICATE A PRIOR PLEA OFFER, INSTEAD OF HOLDING A HEARING AND ADDRESSING THE ISSUE HEAD-ON, THE JUDGE CASUALLY DISREGARDED IT AND TOLD DEFENDANT TO TAKE THE MATTER UP "WITH ATTORNEY ETHICS"; THUS, THE MATTER SHOULD BE REMANDED FOR A FULL-BLOWN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
We have considered defendant's legal argument in light of the record and applicable legal standards. We find this argument to lack sufficient merit to warrant extensive discussion in a written opinion R 2:11-3(e)(2) We add only the following brief comments
After receiving defendant's letter the judge did not casually disregard it as defendant maintains Rather he confronted the issue directly The record reflects that at sentencing the judge patiently allowed defendant to elaborate on the concerns expressed in his earlier letter and inquired of defendant the nature of any relief he was seeking The judge also heard from defense counsel Ultimately the court correctly concluded that defendant did not request to withdraw his guilty plea either on the record or in his June 1 2012 letter Nor did defendant assert a claim of innocence on either occasion As a result there was no reason to proceed further with an evidentiary hearing
Finally to the extent that defendant seeks to raise any claim of ineffective assistance of counsel that lies outside the record before us we reserve such claims for a future potential application for post-conviction relief (PCR) where the record may be expanded with appropriate proofs See State v Preciose 129 N.J. 451 460 (1992); State v Sparano 249 N.J.Super. 411 419 (App Div 1991)