December 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ARTHUR AUGUSTINE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-08-0568.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Harris.
Defendant Arthur Augustine appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Pursuant to a negotiated plea agreement, defendant pled guilty to a four-count indictment charging him with third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); fourth-degree obstruction of the administration of the law, N.J.S.A. 2C:29-1; and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b. In exchange for defendant's guilty plea, the State agreed to recommend an aggregate sentence of ten years with a forty-five month period of parole ineligibility pursuant to the Brimage guidelines.
Defendant was ultimately sentenced in accordance with the plea agreement. However, at the originally scheduled sentencing hearing on February 1, 2008, defendant voiced concerns over the "waive extended term" language that was scratched off his plea form and replaced by legibly written words "pursuant to Brimage." The sentencing judge explained that the language was excised because it did not apply in his case and thereafter adjourned the sentencing to allow defendant the opportunity to discuss the matter with counsel.
When defendant returned for sentencing on February 15, 2008, the judge asked him if he wanted to proceed with the sentencing. Defendant answered, "Yes, your Honor[, ]" and went on to indicate that the reason he raised concerns at the earlier sentencing date was because he believed the plea form had been altered without his consent. When he was next asked if he had "any further concern about the scratch-out[, ]" he responded, "I spoke to my lawyer. I guess not."
The sentencing judge then explained to defendant that the scratch-out was the result of an error in the plea form that referenced waiving an extended term, when in fact his plea was pursuant to the Brimage guidelines. The judge additionally stated to defendant, "So it's plain to see that that was written in error, right?" Defendant responded, "Yeah." At that point, the sentencing judge again asked defendant if he had any concern about the scratch-out, to which defendant replied, "I guess not, your Honor." As noted, the court ultimately sentenced defendant in accordance with the plea deal he struck with the State.
Defendant appealed and we affirmed his judgment of conviction on our Excessive Sentence Oral Argument calendar.
Defendant filed a timely PCR petition in which he alleged, among other things, that counsel was ineffective for failing to move to withdraw defendant's guilty plea because he was confused and misled about his sentencing exposure. Following argument, the PCR judge denied defendant's petition, reasoning:
The point revolves around the scratched-out extended term language on the [defendant's] plea form. While the [defendant] claims that he was confused and misled in entering into this plea, the plea remained consistent throughout this whole ordeal. The State offered the [defendant] a plea of ten years imprisonment with a forty-five month period of parole ineligibility. This offer was not altered by the State at any time in between it being initially proposed and the date of final sentencing. [Defendant] argues that this is a Brimage sentence and not an extended term sentence[.] [I]n the present case such a distinction is irrelevant. The [defendant] was aware that in accepting the presented plea, he would serve ten years with forty-five months served without parole. In reviewing the completed plea form, the extended term language is crossed out with a heavy pen and the words "pursuant to Brimage" are written legibly in its place. Thus, [defendant's] claim that he was confused is unfounded.
The [defendant] voluntarily entered into the plea agreement. While the [defendant] was initially confused regarding the scratched[-]out extended term language on his plea form, [the sentencing judge] adjourned the [defendant's] sentencing so as to allow him and his counsel time to determine whether to withdraw his plea. Leading up to the second sentencing date, the [defendant] did not withdraw his plea or obtain new counsel. This court finds that the [defendant] was given adequate time in between the two sentencing dates to contemplate withdrawing his plea and/or change counsel before sentencing, however he did not. The [defendant] was also asked numerous times by [the sentencing judge] whether or not he wanted to go forward with sentencing and he answered in the affirmative.
In addition, it was clearly in the [defendant's] best interest to accept the plea agreement, without it he would have been facing up to twenty years in prison rather than ten. The [defendant] was fully informed and voluntarily entered into this plea agreement which was to his benefit not his detriment.
On appeal, defendant contends:
I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PURSUE DEFENDANT'S WISH TO WITHDRAW HIS GUILTY PLEA ONCE IT WAS CLEAR THAT HE WAS BEING SENTENCED TO AN EXTENDED TERM, CONTRARY TO HIS EXPECTATIONS OR WISHES.
II. THE PCR COURT ERRED BY DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
Neither of these contentions has any merit, Rule 2:11-3(e)(2), and therefore we affirm substantially for the reasons stated by Judge Pursel in his thorough written decision of November 7, 2011. We add only the following comments.
It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is required 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, 58-59, 106 S.Ct. 366, 370, 88 L.Ed. 2D 203, 210 (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 deficiency here clearly fails to meet either the performance or prejudice prong of the Strickland test
The record in this case clearly demonstrates that defendant entered his guilty plea fully cognizant of the sentence he faced which was the sentence he in fact received Moreover the concern defendant voiced at the initial sentencing hearing was fully addressed explained and resolved by the judge before final imposition of sentence two weeks later during which time defendant was afforded the opportunity to discuss the matter further with counsel Consequently because defendant's guilty plea was knowing intelligent and voluntary and defendant received the full benefit of his bargain with the State any motion by defense counsel to retract defendant's guilty plea would have been properly denied by the court Having failed to establish any deficiency on the part of defense counsel or even assuming such any prejudice resulting therefrom defendant was not entitled to post-conviction relief