Opinion
DOCKET NO. A-2939-14T1
11-30-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAMEED S. BROOKS, a/k/a MAMEED BROOKS and HADEEN BROOKS, Defendant-Appellant.
Joseph J. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Harnett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Nugent. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No.06-02-0664. Joseph J. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Harnett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Hameed S. Brooks appeals the trial court's October 30, 2014 order rejecting his petition for post-conviction relief ("PCR"). We affirm.
After a jury trial in 2006, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C: 29-2(a)(2). He received a fifteen-year sentence on the robbery conviction, subject to a mandatory eighty-five percent parole ineligibility period pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and a concurrent eighteen-month sentence on the resisting arrest offense.
While defendant's direct appeal was pending, he filed a PCR petition in the trial court. That initial petition was withdrawn as premature.
Thereafter, in an unpublished opinion in June 2009, we affirmed defendant's conviction on the resisting arrest charge, but remanded for a new trial on the robbery count because the trial court had failed to charge the jury on the lesser-related theft offense of second-degree receipt of stolen property, N.J.S.A. 2C:20-7. See State v. Brooks, No. A-3817-06 (App. Div. June 22, 2009). We found that the factual proofs provided a rational basis for a jury to find defendant guilty of that theft offense less severe than robbery. Id., slip op. at 8-12. Although defendant was found in possession of the victim's ring shortly after the event, neither her purse nor a handgun were found on him. Ibid. In addition, his fingerprints were not on a handgun police discovered on the street in the vicinity of the incident. Ibid. We rejected the remaining points raised by defendant on appeal, which concerned identification. Id. at 12-16.
On November 4, 2009, the Supreme Court denied the State's petition for certification and defendant's cross-petition for certification. See State v. Brooks, 200 N.J. 503 (2009).
The robbery count of the indictment was never retried. Instead, plea negotiations to resolve that count occurred. On July 12, 2011, defendant pled guilty to an amended count of second-degree robbery. In exchange, the State recommended a seven-year sentence, subject to NERA, and a three-year parole supervision term upon his release, consistent with NERA. The trial court imposed those negotiated terms at resentencing. According to the State's brief, defendant was released from prison on December 9, 2011, less than six months after his guilty plea to the robbery was entered.
On March 12, 2013, defendant filed a pro se petition for PCR relief. Counsel was assigned and the matter was briefed. After hearing oral argument, the trial court issued an eighteen-page written decision on October 30, 2014, concluding that defendant's PCR claims were untimely under Rule 3:22-12 and, moreover, lacked merit.
Defendant presents the following points on appeal:
POINT I
THE PCR COURT ABUSED ITS DISCRETION BY REFUSING TO HOLD AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. The Defendant's Remand Counsel Was Ineffective Because He Allowed 28 Months to Elapse Between the Appellate Division's Reversal of Defendant's Armed Robbery Conviction and the First Pre-Trial Conference/Plea Hearing in Contravention of the Defendant's Constitutional Right to a Speedy Trial.
B. The Defendant's Trial Counsel Rendered Ineffective Assistance of Counsel by Failing to Communicate to the Defendant a Plea Offer of Eight Years with a Four Year Period of Parole Ineligibility.
POINT II
THE PCR COURT ERRED BY HOLDING THAT THE DEFENDANT'S PETITION IS BARRED BY THE FIVE YEAR LIMITATIONS PERIOD IN R. 3:22-12(A).
POINT III
THE PCR COURT ERRED BY FINDING THAT DEFENDANT'S PCR PETITION IS PROCEDURALLY BARRED BY R. 3:22-4.
In essence, defendant's two main substantive contentions before us are: (1) his original trial counsel failed to convey to him an alleged offer by the State to have him plead to an eight-year sentence with a four-year parole disqualifier; and (2) he was deprived of his speedy trial rights as a result of the twenty-eight-month delay in the matter being reached for a new trial on remand. Having considered these arguments in light of the record, and the applicable law, we affirm the denial of his petition, substantially for the sound reasons expressed in the detailed written opinion of the PCR judge, Hon. Richard F. Wells.
With respect to defendant's first main issue relating to the alleged plea offer, we agree with Judge Wells that that claim is time barred under Rule 3:22-12. The issue could have been raised within five years of defendant's judgment of conviction in 2007. Moreover, defendant has failed to substantiate any merit to his contention, other than his "bald assertions." See State v. Preciose, 129 N.J. 451 (1992). The record shows that the State's final plea offer before the trial was for defendant to plead guilty to a first-degree robbery, with the State recommending a twenty-year custodial term subject to NERA. In addition, as the State rightly points out, a four-year parole disqualifier would not be lawful under NERA for a first-degree crime. N.J.S.A. 2C:43-7.2.
There was no indication that the State had a willingness to bargain this case down to a plea to a second-degree crime before the 2006 trial. Defendant contends that there was a letter from his trial attorney that he received after the fact indicating the State was offering a lesser proposal, but that letter has never been located. In any event, such a letter from defense counsel would not be adequate proof of what the State had actually offered. Nor do we discern any merit to defendant's second argument that he was deprived of his right to a speedy trial on remand. Even though that claim is not time barred and could not have been raised on direct appeal, we are unpersuaded that defendant's constitutional rights were violated by the post-remand delay. See Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101, 117-18 (1972) (reciting the factors for evaluating an alleged denial of a speedy trial).
The delay in attaining a final negotiated disposition on remand appears to have been largely attributable to the multiple adjournments that defendant requested through his own counsel. As Judge Wells noted, there were problems in the availability of both witnesses and counsel in having this case ready to proceed on a retrial. The record further suggests that there were multiple communications during this time frame between the prosecutor's office and remand counsel to reduce defendant's sentencing exposure to the ultimate seven years that was negotiated. Although we do not endorse a twenty-eight-month delay in the ordinary course, the situation here, which ultimately produced a comparatively advantageous outcome for defendant, does not bespeak a constitutional deprivation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION