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State v. Hooper

Superior Court of New Jersey, Appellate Division

May 10, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LEWIS HOOPER, Defendant-Appellant.

          Argued September 26, 2018

          On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-06-0768.

          John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; John W. Douard, of counsel and on the brief).

          David M. Liston, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; David M. Liston, of counsel and on the brief).

          Before Judges Fuentes, Accurso and Moynihan.

          OPINION

          ACCURSO, J.A.D.

         Defendant Lewis Hooper appeals his sentence on a nine-count indictment and the trial court's denial of his motion to withdraw his open plea after sentencing based, in part, on a claim of ineffective assistance of counsel. Because we conclude the court must hold an evidentiary hearing on defendant's claim of ineffective assistance of counsel in connection with his plea, we reverse the order denying his motion and remand for that hearing. We also vacate defendant's sentence on account of the court's failure to address the Yarbough[1] factors after determining to impose an extended-term sentence and remand for resentencing, if necessary, following the hearing on defendant's motion to withdraw his plea.

         In January 2013, defendant and two confederates, Chinikka Lockhart and Mohamed Kamara, agreed to arm themselves with a gun and go to the home of Mario Lombardo, Jr. to steal his marijuana. After Lombardo answered the door to Lockhart, defendant and Kamara stepped inside while Lockhart slipped back onto the porch. Defendant pointed the gun at Lombardo while Kamara rifled Lombardo's pockets. After Kamara wrested the marijuana from Lombardo, Lombardo fell backward as Kamara turned to flee. Before following Kamara out the door, defendant shot Lombardo.

         The bullet struck Lombardo in the head, shattering his skull. After several surgeries and a year in the hospital, Lombardo, twenty-two years old at the time of the shooting, remains grievously injured. He is paralyzed on one side and cannot speak. Defendant claimed he shot Lombardo after seeing him reach toward his waistband, presumably for a gun. The State claimed defendant shot Lombardo to prevent him from identifying his assailants. Both the robbery and the shooting were captured, at least partially, on security cameras mounted in Lombardo's porch and front hall. Defendant can be seen firing the shot that struck Lombardo, but Lombardo is not visible in the frame.

         Defendant was indicted on charges of second-degree conspiracy to commit armed robbery and robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) and (2) (count four); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count six); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count seven); third-degree hindering apprehension or prosecution of oneself, N.J.S.A. 2C:29-3(b)(4) (count eight); and third-degree hindering apprehension or prosecution of another, N.J.S.A. 2C:29-3(a)(7) (count nine).

         Defendant, twenty-nine years old at the time of these offenses, was extended-term eligible. He had been convicted of third-degree theft committed in 2005, when he was twenty-one years old, and sentenced to probation in 2006. In 2009, he violated probation by committing a drug offense. He pleaded guilty to the violation of probation and to third-degree possession of CDS and was sentenced in March 2010 to five years in State prison with a two-and-a-half-year parole ineligibility term. Because both crimes were committed within ten years of the offenses for which defendant was being sentenced in 2016, he qualified for extended-term sentencing as a persistent offender. See N.J.S.A. 2C:44-3(a).

         Near the time of defendant's arraignment, the State offered to recommend a sentence of fifty years in exchange for defendant pleading guilty to conspiracy, armed robbery, robbery, attempted murder and unlawful possession of a weapon. Defendant rejected that offer.

         That is where negotiations stood for nearly three years. On May 11, 2016, however, the first assistant prosecutor wrote to defendant's counsel confirming their "recent conference" at which defendant "presented the State with a counter offer of twenty (20) years in a New Jersey State Prison." The letter confirmed the State's rejection of that offer but stated the writer "will present to the [victim's] family, a counter offer which will mandate the defendant serving approximately thirty (30) years in a New Jersey State Prison." What happened next is detailed in two "affidavits"[2] presented by defense counsel, the first assistant deputy public defender and her second chair, then an assistant deputy public defender, now a lawyer in private practice.

         Those lawyers aver that they attended a pre-trial conference on June 13, 2016, where they discussed their plea negotiations with the prosecutor in the chambers of the trial judge. They contend "[t]he State's final offer was a thirty-year sentence subject to an eighty-five percent parole disqualifier under the No Early Release Act-a sentence that would have required Mr. Hooper to consent to be sentenced as a persistent offender, in other words, [to] a discretionary extended term." Counsel claim they responded by advising that defendant "was interested in a plea but not 30 years." The first assistant deputy public defender further claims she told the prosecutor she "would never advise [her] client to accept a plea that called for a discretionary extended term, particularly given his minimal prior record." Indeed, she had written to defendant days earlier advising she intended to argue defendant was not extended-term eligible.[3]

         In response to her unwillingness to recommend defendant agree to be sentenced to an extended term, counsel avers the prosecutor suggested defendant could enter a guilty plea to multiple counts of the indictment with consecutive sentences. The defense lawyers claim the judge interjected "that he did not see it as a 'consecutive case, '" characterizing it "as a 'robbery gone bad, '" and "that this case would not result in consecutive sentences given the facts and circumstances." Counsel claim that following that conference, they "were confident that [the judge] would not run the counts consecutively, should Mr. Hooper choose to plead without a sentencing recommendation from the State."

         Accordingly, they met with their client three days later and "advised him that if the [j]udge finds that he meets the statutory criteria as a persistent offender, he could receive as much as the State's thirty year offer, but that the [j]udge was almost assuredly going to sentence him to something between ten and thirty years in State prison." The first assistant deputy public defender averred she told defendant

that an open plea would result in a sentence between 10 and 30 years, but would ultimately be left to [the judge]. We told him that since the current plea offer was 30 years, it was highly unlikely that the [j]udge would go above that number. We told Mr. Hooper that the [j]udge is never bound by plea offers, but since we had a conference, [the judge] was aware of the sentence that the State was recommending.

         Based on the advice of his counsel, defendant pleaded guilty the next day to all the counts in the indictment with no recommendation from the State. In the course of providing a factual basis for his plea, defendant agreed with his counsel that when the "robbery was concluded, there was some sort of struggle at the end of it." Defendant further agreed that he "perceived" the victim to be "reaching for something," which defendant thought "may have been a weapon" and thus shot him with the intent of killing him before the victim "kill[ed] [him] first." Defendant indicated he understood "the law of self-defense would not be available to [him] at trial" because, not only was he in the victim's home, he was "obviously, the initial aggressor."

         The judge engaged defendant in a thorough plea colloquy, in which he advised defendant his maximum sentencing exposure was sixty-one-and-a-half years, but if the court granted the State's extended-term motion, it could sentence defendant to life in prison. The judge confirmed defendant had spoken with his counsel "about that possibility" and that counsel had answered all of his "questions about that possibility." The judge also took pains to ensure defendant understood what pleading "open" entailed, emphasizing "[s]o there's no expectation of you getting a 10 or a 15 or a 10 or a 30. It's - right now, it's completely open." Defendant agreed with the judge that defense counsel answered all his "what if" questions and had given him "their best prediction of what may or may not happen in this case, based on their many years of experience" and that he was satisfied with their work on his behalf.

         Prior to sentencing, the prosecutor filed a brief seeking a seventy-five-year prison term, including a fifty-five-year extended term for attempted murder and a consecutive twenty-year term for armed robbery, and supplied the court with the video of the robbery and shooting. The judge granted the State's motion for an extended term, rejecting defense counsel's argument that because defendant was resentenced on his 2006 theft conviction in 2010 following his violation of probation, on the same day he was sentenced on his conviction for possession of CDS, he effectively had only one prior conviction and was thus not extended-term eligible.[4]

         The judge also rejected counsel's argument that defendant shot Lombardo because defendant thought Lombardo was going for a gun, or that the court was bound to accept "[defendant's] version of the facts." Stating he "reviewed the videotape a number of times," the judge ruled he was entitled to judge defendant's credibility "like any other witness," and did "not [accept] Mr. Hooper's belated proffer that this was - self-defense." He thus rejected defendant's contention that mitigating factor four, substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4), was present and found aggravating factors three, the risk defendant would commit another offense; six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and nine, the need to deter, N.J.S.A. 2C:44-1(a)(3), (6) and (9), and no mitigating factors.

         The judge merged for sentencing purposes defendant's convictions for conspiracy, robbery, armed robbery and possession of a handgun for an unlawful purpose and imposed an extended twenty-five-year prison term "on those counts," subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Concluding defendant shot the victim "purely gratuitous[ly]" after the robbery was completed, the judge declined to merge defendant's convictions for attempted murder and armed robbery, and further found that Yarbough, most notably its injunction against "free crimes," supported a consecutive sentence of a twenty-year NERA term on defendant's conviction for attempted murder. Yarbough, 100 N.J. at 643. The judge imposed a second consecutive extended term of twelve years for unlawful possession of a weapon, with six years of parole ineligibility under the Graves Act, N.J.S.A. 2C:39-4(a), a concurrent four-year extended term for resisting arrest and consecutive seven-year extended terms on defendant's convictions for hindering apprehension or prosecution of himself and another to be served concurrent to one another, for an aggregate sentence of sixty-four years in State prison, forty-four of which were to be served without eligibility for parole.

         The judge explained the factor driving the sentence was that the offenses were committed while defendant was on parole. Addressing the aggravating factors, the judge found "it's not a question of if [defendant] will commit another crime, it's when he would commit another crime." Stating he had "no expectation and no hope" the sentence imposed would deter defendant, the judge expressed his expectation

that the sentence I will impose - and I know the word will get out to the community; the media is not here because the media has priorities that are not always correct, and they don't always report on stuff that goes on in the courthouse. But I know that the number I impose today will go out. And by this evening, people in New Brunswick will know what number it is, and they're going to go, damn. Damn. Because that's the reaction I want from the sentence that I give: Damn, that's serious.
And maybe, just maybe, some other knucklehead out in New Brunswick, or anywhere else in this county, will think twice about doing what this defendant did. So the [c]ourt is putting extraordinary ...

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