Opinion
DOCKET NO. A-0942-11T1
03-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DERRICK CAUTHORNE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-06-2422.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Derrick Cauthorne appeals from the March 11, 2011 order denying his first petition for post-conviction relief (PCR). We affirm.
I.
In October 2004, Cauthorne pled guilty to second-degree robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5); second-degree escape, N.J.S.A. 2C:29-5(a); and possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3). After being placed under oath, Cauthorne provided a factual basis for each of the crimes.
In summary, Cauthorne "proceeded to grab [the victim] by the throat and ask[ed] him for money," which was given. Cauthorne was shortly arrested by the police, but he "kicked the door open striking the police officer," and ran away still handcuffed, until he was again apprehended. At the time, Cauthorne was in possession of "[twenty-one] bags of crack cocaine," which he was "going to sell."
The plea judge spoke directly to Cauthorne during the plea proceeding, asking questions of Cauthorne, and explaining several ramifications of the plea, including the potential sentence that might be imposed. The judge reviewed all of the charges and paid close attention to the details contained in Cauthorne's written plea form.
The first page of the plea form disclosed the "Statutory Maximum" for each of the four crimes to which Cauthorne was going to plead guilty. Under the word "Time," were four handwritten numbers, which totaled forty-five years. These numbers also appeared next to the plea form's pre-printed abbreviation, "MAX."
The plea judge discussed the elements of the plea arrangement, including Cauthorne's "stip to persistent offender," which was written on the plea form. The judge explained that the aggregate sentence would not exceed thirteen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also went over each charge and stated "the maximum sentencing that [Cauthorne] could receive." She also asked Cauthorne directly, "[d]o you understand those possibilities," to which Cauthorne answered in the affirmative.
This reference was to the applicability of N.J.S.A. 2C:44-3(a)
Sentencing did not occur until February 18, 2005. At that time, the judge acknowledged having received a letter from Cauthorne asking to withdraw his plea. No formal motion for such relief was ever filed. When asked why he sought to withdraw the plea at that time, Cauthorne answered, "I think it's too much time for me."
The judge refused to allow Cauthorne to withdraw the guilty plea. She reviewed, in summary, the details of the plea allocution, and mentioned that "if [Cauthorne] were tried and found guilty, [the court would] be required to sentence [him] to consecutive sentences." In light of the plea arrangement, the judge imposed a thirteen-year NERA sentence.
Cauthorne filed a notice of appeal, which was ultimately reviewed pursuant to Rule 2:9-11. In December 2005, we affirmed the judgment of the trial court as follows:
Having considered the record and argument of counsel, and it appearing that the issues on appeal relate solely to the sentence imposed, we are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989)[;] State v. Roth, 95 N.J. 334 (1984)[;] and does not violate State v. Dunbar, 108 N.J. 80, 89 (1987).
[State v. Cauthorne, No. A-4321-04T4 (App. Div. December 13, 2005).]
In November 2009, Cauthorne filed a handwritten pro se petition for PCR focused mainly on his failed effort to withdraw his guilty plea. After PCR counsel was assigned and the issues were briefed, PCR counsel turned his attention to several claims of ineffective assistance of defense and appellate counsel. Among the litany of grievances against Cauthorne's former attorneys, PCR counsel claimed that defense counsel failed to advise Cauthorne that the victim of the robbery was a prominent attorney, necessitating a motion to change venue; neglected to assist Cauthorne in articulating reasons to withdraw his guilty plea; and failed to object to the imposition of the extended term. As for the supposed ineffectiveness of appellate counsel, the only grievance leveled against such counsel was contained in Cauthorne's supplemental petition, which chided counsel for "failing to ask for a new appellate panel."
The application for post-conviction relief was heard by the same judge who accepted Cauthorne's plea, denied his informal application to withdraw the plea, and imposed sentence. Following oral argument, the judge denied post-conviction relief. After reviewing each alleged instance of ineffectiveness, she found Cauthorne had failed "to show that plea counsel operated outside the large margin defined in Strickland[]." The judge concluded that Cauthorne "has not met his burden of showing that . . . there was even a prima facie basis for a finding of ineffective assistance of counsel and therefore his . . . post-conviction relief motion is denied." This appeal followed.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
On appeal, Cauthorne presents the following points for our review:
POINT I: DEFENDANT WAS UNCONSTITUTIONALLY DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT BOTH HIS PLEA AND SENTENCING HEARINGS AND SHOULD HAVE BEEN ALLOWED TO WITHDRAW HIS GUILTY PLEA.After reviewing the record, we conclude that these arguments are unpersuasive.
A. INEFFECTIVE ASSISTANCE OF COUNSEL AT PLEA HEARING.
B. INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING.
POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS DIRECT APPEAL FROM HIS PLEA AND SENTENCE BY COUNSEL'S FAILURE TO REQUEST THAT THE CASE BE WITHDRAWN FROM THE EXCESSIVE SENTENCING ORAL ARGUMENT PANEL AND BE SCHEDULED FOR A PLENARY APPEAL SPECIFICIALLY ON THE ISSUE OF WHETHER OR NOT THE TRIAL COURT ERRED IN DENYING HIS REQUEST TO WITHDRAW HIS GUILTY PLEA (NOT RAISED BELOW)
POINT III: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN REGARDS TO HIS PETITION FOR POST-CONVICTION RELIEF.
POINT IV: DEFENDANT WAS ERRONEOUSLY LED TO BELIEVE THAT SHOULD HE GO TO TRIAL HE WAS FACING A SENTENCE EXPOSURE OF A CONSECUTIVE 45 YEARS IN PRISON, THUS HIS PLEA AGREEMENT WAS INVOLUNTARY AND HE SHOULD BE ALLOWED TO WITHDRAW HIS GUILTY PLEA.
POINT V: THE TRIAL COURT'S FAILURE TO ADVISE DEFENDANT OF HIS RIGHT TO CHALLENGE THE VALIDITY OF THE ALLEGED PREDICATE FELONIES MANDATING AN EXTENDED TERM VIOLATED HIS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT VI: THE PCR COURT ERRED IN MAKING FACTUAL FINDINGS WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING.
POINT VII: THIS CASE MUST BE REMANDED TO THE TRIAL COURT FOR RESENTENCING AS DEFENDANT'S SENTENCING VIOLATED THE DICTATES OF BLAKELY V. WASHINGTON, STATE V. NATALE AND STATE V. PIERCE.
II.
A.
The New Jersey Supreme Court recently reminded judges, members of the bar, and the general public that "[o]ur system of criminal justice is not infallible." State v. Nash, ___ N.J. ___ , ___ (2013) (slip op. at 22). Post-conviction relief is the fail-safe that strives to avoid miscarriages of justice. Ibid.
One of the most common grounds for post-conviction relief is a demonstration of ineffective assistance of counsel. Such claims are analyzed under the so-called Strickland/Fritz test that is followed in this state. Nash, supra, ___ N.J. ___, ___ (slip op. at 24) (citing Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692; State v. Fritz, 105 N.J. 42, 58 (1987)).
To establish constitutional ineffectiveness, a defendant must first show that "counsel's performance was deficient." [Strickland, supra, 466 U.S.] at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A deficient performance means that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a "defendant must show that the deficient performance prejudiced the defense." Ibid. Prejudice means "that counsel's errors"The test is not whether defense counsel could have done better, but whether he met the constitutional threshold for effectiveness." Id. at 26 (citations omitted).
were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. When a defendant meets both prongs of Strickland, a conviction must be reversed because the ineffective representation constitutes "a breakdown in the adversary process that renders the result unreliable." Ibid.
[Nash, supra, ___ N.J. ___, ___ (slip op. at 25.]
B.
In cases brought by a defendant who has entered a guilty plea, Strickland's first prong is met where a defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 668, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The second component is shown by establishing a reasonable probability that the defendant would not have pled guilty, but for his counsel's errors. Id. at 279-80 (citations omitted).
C.
Cauthorne's first argument relates to his unsuccessful effort to withdraw his guilty plea. Related to this claim is the contention that appellate counsel was ineffective for not seeking a plenary appeal on the issue.
Cauthorne contends that when he was considering the plea arrangement, "he was misinformed by both counsel, and the court, was given a bad deal, and accepted it rather than face 45 years in prison." At sentencing, he claims that defense counsel
for all intents and purposes remained mute at sentencing. He made absolutely no argument in support of defendant's request to withdraw his plea, nor did he make any argument on defendant's behalf that his sentence should be lower than the upper limit of 13 years as per the plea agreement.
We discern no merit in Cauthorne's contentions. Although the record supports Cauthorne's assertions regarding the conduct of his defense attorney during the plea allocution and sentencing, the record fails to demonstrate any prejudice suffered by Cauthorne for the simple reason that he was never entitled to withdraw the plea.
During the plea colloquy, it was made clear to Cauthorne that his maximum penal exposure, if he were convicted after trial, was forty-five years. He further knew that the aggregate sentence that was bargained for was seventy per cent less than the potential maximum. His pleader's remorse over accepting such an arrangement manifested itself as the sole reason for seeking to jettison the guilty plea. Such a reason enjoys no support in the law as a basis for relief. Accordingly, there was no ineffective assistance of counsel. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").
In its appellate brief, the State concedes that an error in computation was made, which results in the actual maximum term being forty-one-and-a-half years. In the context of this appeal, we consider the difference to be inconsequential.
Where, as here, a defendant seeks to withdraw a guilty plea before sentencing, the court must determine whether the interests of justice would be served by allowing the withdrawal. R. 3:9-3(e). The matter is committed to the sound discretion of the court. State v. Slater, 198 N.J. 145, 156 (2009). A defendant has the burden of presenting "'some plausible basis for his request, and his good faith in asserting a defense on the merits.'" State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)). In resolving the motion, the court must consider the following factors: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal of the plea; (3) whether the plea was entered as part of a plea bargain; and (4) whether withdrawal of the plea would result in unfair prejudice to the State or unfair advantage to the accused. Slater, supra, 198 N.J. at 158-61. Cauthorne's change of heart, without more, fails to satisfy this test.
Because Cauthorne's legal entitlement to withdraw his guilty plea is entirely lacking, his argument that appellate counsel should have sought plenary review, rather than Rule 2:9-11 review, is meritless. See State v. Roper, 378 N.J. Super. 236, 237 (App. Div. 2005) (observing that if a legal argument "had no merit, then defendant would be unable to establish the 'prejudice prong' of the ineffective assistance of counsel standard established by Strickland"). Similarly, Cauthorne's attack on PCR counsel for "totally omit[ting] any argument regarding defendant's claim that he should have been allowed to withdraw his guilty plea," is unavailing.
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For the same reasons, we detect no ineffective assistance of counsel during sentencing. Although defense counsel did not argue for a particularized sentence other than that pursuant to the plea arrangement, Cauthorne has provided only conclusory assertions that such lawyering was ineffective. "Petitioner must offer something more than a bare allegation." State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999) (citation omitted).
D.
Cauthorne argues several times that the Law Division erred by failing to provide him with a plenary hearing on his claims. While a defendant is obliged to establish the right to relief by a preponderance of the credible evidence, State v. Preciose, 129 N.J. 451, 459 (1992), the court must consider the "contentions indulgently and view the facts asserted by him in the light most favorable to him." Cummings, supra, 321 N.J. Super. at 170. An evidentiary hearing should be held if the application involves genuine issues of material fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). Alternatively, a court need not hold such a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or . . . the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citations omitted); see also Cummings, supra, 321 N.J. Super. at 170 ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.").
The PCR judge did not mistakenly exercise her discretion when she did not conduct an evidentiary hearing. On the totality of the record of Cauthorne's plea and sentencing proceedings, all that was necessary to resolve the putative errors was apparent. None of the issues in this case warrant the need for an evidentiary hearing because of the absence of a prima facie showing of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462.
E.
Cauthorne's remaining points relate to what he claims are due process violations connected to the use of his two prior convictions as a basis to impose a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a). First, he claims that he had a constitutional due process right to be advised of his rights to contest "a finding of the prior conviction[s]." Second, he argues that his sentence was "illegally imposed based upon facts not found by the jury." We consider both arguments meritless. R. 2:11-3(e)(2). We add the following brief comments.
Although already determined in Cauthorne's Rule 2:9-11 appeal, the sentencing judge's factfinding did not run afoul of the rigors announced in Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 2355, 147 L. Ed. 2d 435, 446 (2000). The judge confined her analysis to those facts — Cauthorne's age and prior convictions — that were not required to be submitted to a jury and proved beyond a reasonable doubt. State v. Pierce, 188 N.J. 155, 163 (2006). Indeed, notwithstanding his protestations that he was never constitutionally advised of a right to contest the prior convictions, Cauthorne has offered nothing to challenge their validity or applicability to his case.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION