State v. DeWitt

Full title: STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARQUESE DEWITT…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 7, 2013

DOCKET NO. A-0371-11T1 (App. Div. Mar. 7, 2013)

Opinion

DOCKET NO. A-0371-11T1

03-07-2013

STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARQUESE DEWITT, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carmelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Sabatino and Maven.

On appeal from the Superior Court New Jersey, Law Division, Passaic County, Indictment No. 08-04-0549.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Carmelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant Marquese DeWitt appeals from an April 8, 2011 order, denying his petition for post-conviction relief (PCR). We affirm.

After entering into a plea agreement for first degree robbery, N.J.S.A. 2C:15-1, defendant was sentenced on January 2, 2009, to a ten-year sentence, of which eighty-five percent would be served pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, with five years of parole supervision upon release. The sentence was to run concurrent with a sentence he was already serving. Pursuant to the plea agreement, the remaining counts of the indictment were dismissed. Defendant did not file a direct appeal.

The facts as adduced at the plea hearing are as follows. On November 21, 2007, at approximately 11:00 P.M., defendant silently approached a victim with an air gun visibly tucked in the waistband of his pants. As defendant attempted to steal the victim's cellular phone, they began to wrestle and victim saw the gun. The air gun fell to the ground, and defendant fled. The police later arrested defendant and confiscated the victim's cellular phone.

Defendant filed a timely PCR petition in which he alleged: ineffective assistance of counsel; that his plea was not knowingly, voluntarily or intelligently given; that the time bar of Rule 3:22-4 should not apply to his claims; and his sentence was excessive. At oral argument, PCR counsel made several arguments in support of defendant's claim of ineffective assistance of trial counsel. She contended that defendant never received a copy of trial discovery; trial counsel never had any meaningful discussions regarding his defense; trial counsel informed defendant that if he proceeded with trial, he would be convicted; defendant felt pressured to plead guilty; and when defendant desired to appeal his excessive sentence, trial counsel told defendant he could not because he pled guilty. As a result, PCR counsel argued that trial counsel was ineffective and defendant's plea was not given knowingly, voluntarily and intelligently.

Judge Joseph A. Falcone, who had also presided over defendant's guilty plea and sentencing, determined that an evidentiary hearing was not required. The court rejected the claim that counsel was ineffective by noting:

First of all, I don't believe [trial counsel's] performance was deficient. . . . It's on the record that he showed and discussed the discovery with his client perhaps in more depth than he normally does in cases. . . .
Did he force this defendant to plead? There's nothing in the record that would support that allegation; it's to the contrary.
. . . .
[H]ow's this defendant prejudiced? He wasn't going to get a better plea. [Trial counsel] did the best he could do, including
my commitment to undercut the Prosecutor's sentence recommendation.

In determining that the results of the proceeding would not have been any different, the court noted that:

the likelihood of conviction was rather strong here.
. . . .
When the police begin to investigate what they just learned was a robbery . . . along the way the phone is found . . . . [L]o and behold that phone rings; it's picked up by the police officer. The caller is looking for her brother, the victim . . . [and] the phone . . . was in the possession of Mr. DeWitt who's identified at the scene by the victim[.]
He makes an admission about a weapon to the police as well . . . . A strong case, strong case.

Finally, the court reviewed the plea allocution and determined that upon questioning from his counsel and the court, defendant gave a knowing, voluntary and intelligent plea. The judge stated that "a fair reading of the plea transcript will indicate he didn't just give a yes and no answer to a question, he gave a narrative explanation of what he did that made him guilty of first degree robbery." The court thereafter denied defendant's PCR petition.

This appeal followed, in which defendant contends:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions for Post Conviction Relief.
B. Since the Defendant Presented a Prima Facie Case of Ineffective Assistance of Trial Counsel, the Trial Court Erred in Denying His Petition Without Affording Him an Evidentiary Hearing to Fully Address His Contention.

II. RULE 3:22-4 DID NOT OPERATE AS A PROCEDURAL BAR PRECLUDING THE TRIAL COURT FROM ADDRESSING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON A SUBSTANTIVE BASIS.

We find no merit to these contentions, pursuant to Rule 2:11-3(e)(2), and, therefore, affirm substantially for the reasons stated by Judge Falcone in his thorough oral decision on April 8, 2011. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 67 (1987) (adopting the Strickland standard in New Jersey). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

The order denying PCR is affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELIATE DIVISION