Opinion
DOCKET NO. A-5878-12T4
04-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMIL DRAKEFORD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-03-00773. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jamil Drakeford appeals from an order entered by the Law Division on May 3, 2013, which denied his petition for post-conviction relief ("PCR"). We affirm.
I.
Defendant was charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1b(1) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1) (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); third-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3 (count six); and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (count seven).
Vincent Davis and Maurice Johnson also were charged in the indictment.
On November 17, 2010, defendant pled guilty to counts two (first-degree robbery) and four (third-degree unlawful possession of a weapon). The State agreed to recommend a custodial sentence of not more than ten years, with a period of parole ineligibility as prescribed by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
At the plea hearing, defendant admitted that on September 28, 2009, he participated in a robbery of a store on Springfield Avenue in Newark. Defendant said a shotgun was involved in the robbery. Defendant did not have a permit for that weapon, and to his knowledge, the other participants did not have such a permit. Defendant was in the store and knew that a robbery was going to take place. He took money and was trying to leave the store but the police arrived and caught defendant inside the store.
On January 24, 2011, the court sentenced defendant to ten years of incarceration on count two, charging first-degree robbery, with the NERA parole ineligibility period. In addition, the court imposed a concurrent five-year custodial term on count four, charging unlawful possession of a weapon. Defendant did not file a direct appeal from the judgment of conviction, which was dated January 24, 2011, and signed by the judge on January 25, 2011.
On April 23, 2012, defendant filed a pro se PCR petition in the Law Division, alleging that he had been denied the effective assistance of counsel. He also sought to withdraw his guilty plea, and argued that he should have been sentenced for a crime of the second-degree on count two. The court appointed PCR counsel for defendant, and counsel apparently filed a brief in support of the petition. The PCR judge heard oral argument in the matter on February 5, 2013, and denied the petition in an order entered on May 3, 2013.
In the order, the judge noted that defendant had not established grounds for withdrawal of the plea pursuant to State v. Slater, 198 N.J. 145 (2009). The judge pointed out that defendant "maintains and admits his guilt" to the offenses to which he pled guilty. The judge also determined that defendant failed to establish a prima facie claim of ineffective assistance of counsel with regard to his sentencing. The court concluded that an evidentiary hearing was not required.
On appeal, defendant raises the following arguments:
POINT I
THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING COUNSEL'S FAILURE TO OBJECT WHEN THE TRIAL COURT IMPROPERLY PERSUADED DEFENDANT TO PLEAD GUILTY.
POINT II
THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING COUNSEL'S FAILURE TO PRESENT MITIGATING FACTORS.
POINT III
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.
II.
Defendant argues that he established a prima facie case of ineffective assistance of counsel because his attorney failed to object to the judge's statements at the plea hearing. Defendant claims that the judge improperly persuaded him to plead guilty, and that his attorney should have objected.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant first must establish that his attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To do so, the defendant must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A defendant also must establish that his attorney's deficient performance prejudiced his defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To meet this part of the test, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Where, as in this case, a defendant claims he was denied the effective assistance of counsel with regard to a plea, the defendant must show that it is reasonably probable that he would have refused to plead guilty, and that he would have insisted on going to trial, if not for counsel's errors. State v. DiFrisco, 137 N.J. 434, 457 (1994) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); see also State v. Nunez-Valdez, 200 N.J. 129, 139 (2009).
Defendant alleges that he was unsure whether to enter a guilty plea until the judge convinced him that he was facing a lengthy prison sentence. Defendant contends that the judge used improper and unduly influential "methods" in convincing him to plead guilty. According to defendant, his attorney's failure to object to the judge's comments rendered his performance ineffective.
The record of the plea hearing does not support defendant's arguments. At the hearing, defendant's attorney indicated that in the fifteen months defendant had been in jail, he had spoken with defendant "numerous times." Counsel said defendant had "flip-flopped" about whether he would enter a plea or go to trial. Counsel asked the judge to question defendant about "what he wishes to do[.]"
The judge then told defendant that he had to either sign the pretrial memorandum and pick a trial date, or agree to a plea. The judge noted that defendant's attorney had prepared the plea forms and the pretrial order, and that counsel had presented both to defendant. The following discussion ensued:
THE COURT: All right. Now, [defense counsel], anything else you want to put on the record before we go any further down the road on this issue?
[DEFENSE COUNSEL]: No, [j]udge. I just need to know what is the defendant's intention so I can proceed.
THE COURT: Well, that was my next question.
[DEFENSE COUNSEL]: Okay.
THE COURT: . . . You've reached a fork in the road. You either go take a plea or we sign a pretrial order which means I have — after today I [cannot] take your plea, the case has to go to trial and be tried to a verdict. [Do] [y]ou understand?
THE DEFENDANT: Yes.
The judge then reviewed the charges and stated that, if convicted on all counts, defendant's maximum exposure would be seventy years in prison. The judge asked defendant his age, and defendant replied that he was twenty-one years old. The prosecutor noted that the State's offer was for defendant to plead guilty to first-degree robbery and third-degree unlawful possession of a weapon. In exchange, the State would recommend ten years of incarceration, with an eighty-five percent period of parole ineligibility pursuant to NERA. The judge asked defendant if he understood his options. He replied, "Yes."
The judge stated that if defendant were to go to trial and lose on everything, he could be sentenced to seventy years of incarceration, which was "a lot of time." The judge noted that defendant was twenty-one years old, and the judge fifty. The judge pointed out that there was almost a thirty-year difference in their ages. The discussion continued:
THE [COURT]: . . . This would [be] over twice as long as that. There's a lot of living you can do between [twenty-one] and [fifty], never mind [twenty-one] and [seventy]. . . .
Most people [cannot] fathom that kind of time frame, okay, but that's . . . a lot of time to spend in custody. It's up to you. We're happy to oblige you either way. You understand that . . . all things being equal, you know whether you [committed] the . . . crime.
On top of that, you know based upon what [your attorney] explained to you and showed you whether the State can prove that case against you. I understand the proofs are pretty good against you. I don't know, I [have not] seen them, but I only know what the lawyers tell me.
Now this is not Atlantic City. Okay. Now there are certain parts of this where
it's better to take a sure thing — fire on something else. Are you listening, sir?Defendant informed the judge that he wanted to enter the guilty plea.
THE DEFENDANT: I'm listening to you. I'm listening.
THE COURT: Try the case, I'll give you a fair trial. I'm known for . . . trying . . . a fair case. [If] [y]ou win, the jury acquits you, you get a not guilty, God bless. That's the way the system works. However, [if] you lose, I can guarantee you one thing, that you will get a substantially worse sentence than [ten] with [eight-five]. That's the way . . . the system works, assuming you get convicted on everything. Okay.
So it's up to you [to decide] what you want to do, but this is the moment of truth. What do you want to do?
The State asserts that defendant's sentencing exposure would have been fifty years in jail if he was convicted of four of the counts, specifically first-degree robbery, second-degree conspiracy to commit robbery, second-degree aggravated assault, and second-degree possession of a weapon for an unlawful purpose. Even if we assume that defendant's attorney should have objected to the judge's reference to a possible seventy-year sentence or the judge's other remarks, there is no indication that, but for that error, defendant would have rejected the plea and proceeded to trial.
At the plea hearing, the judge indicated that, if defendant went to trial, he would receive a sentence substantially longer than the ten-year custodial term with the NERA parole ineligibility period that the State had offered. Defendant chose to accept the State's plea offer. Defendant failed to show that he would have rejected the plea offer if his attorney had handled the plea hearing differently.
We conclude that defendant did not establish that he was denied the effective assistance of counsel at the plea hearing.
III.
Defendant also argues that he was denied the effective assistance of counsel because, at sentencing, his attorney failed to argue for mitigating factors ten (defendant is likely to respond affirmatively to probationary treatment), and twelve (willingness of defendant to cooperate with law enforcement). N.J.S.A. 2C:44-1b(10), (12). Defendant further argues that his attorney's failure to argue for these mitigating factors denied him of the opportunity to be sentenced as a second-degree offender on count two, pursuant to N.J.S.A. 2C:44-1f(2).
We note initially that defendant's sentencing arguments are not appropriate for PCR because they could have been but were not raised on direct appeal. R. 3:22-4(a). Only illegal sentences, not allegedly excessive sentences within legal limits, are appropriate for PCR. State v. Acevedo, 205 N.J. 40, 45-46 (2011); see also State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988) (noting that a claim that a sentence is excessive, rather than beyond or inconsistent with legal constraints, is not an appropriate ground for PCR and can be raised only on direct appeal from the conviction), certif. denied, 115 N.J. 78 (1989).
In any event, defendant has not shown that he was denied the effective assistance of counsel because his attorney failed to argue for mitigating factors ten and twelve at sentencing. Defendant has not shown that it was reasonably probable the sentencing judge would have found either factor if defense counsel had raised these issues.
The record does not support defendant's claim that he was "particularly likely to respond affirmatively to probationary treatment." N.J.S.A. 2C:44-1b(10). Here, defendant pled guilty to a first-degree offense. There is a presumption of imprisonment when a person is convicted of such an offense. N.J.S.A. 2C:44-1d. Defendant failed to show that he could have overcome that presumption.
In State v. Jabbour, 118 N.J. 1 (1990), the Court noted that the presumption of incarceration can only be overcome where "'imprisonment would be a serious injustice which overrides the need to deter'" others from engaging in criminal conduct. Id. at 6 (quoting N.J.S.A. 2C:44-1d). The Court said that the "serious injustice" exception only applies in "'truly extraordinary and unanticipated circumstances.'" Id. at 7 (quoting State v. Roth, 95 N.J. 334, 358 (1984)). Defendant has not shown that his imprisonment would have been a "serious injustice" under that standard.
Moreover, defendant's criminal record would not have supported a finding of mitigating factor ten. According to the State, as a juvenile, defendant was adjudicated delinquent on certain drug charges. He was later convicted as an adult on drug charges and the court imposed a probationary term. Defendant violated his probation and shortly thereafter committed the armed robbery for which he was sentenced in this case.
In addition, it was unlikely the sentencing judge would have found mitigating factor twelve, based on defendant's alleged "willingness . . . to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1b(12). Defendant says he cooperated with law enforcement by entering a plea, which allowed the charges to be resolved quickly and without a trial. Defendant also notes that at the plea hearing, he provided a statement which purportedly exonerated co-defendant Johnson.
The State maintains, however, that defendant's "cooperation" was factored into the agreement under which the State recommended the minimum sentence for a first-degree offense. Furthermore, it is questionable whether a defendant's confession, taken alone, qualifies as "cooperation" under N.J.S.A. 2C:44-1b(12). See State v. Read, 397 N.J. Super. 598, 613 (App. Div. 2008) (questioning whether the defendant's confession qualified as "cooperation" under N.J.S.A. 2C:44-1b(12) where defendant did not identify another perpetrator or assist in solving other crimes), certif. denied, 196 N.J. 85 (2008).
In addition, there is no merit to defendant's claim that counsel's failure to seek findings of mitigating factors ten and twelve deprived him of the opportunity for a sentencing downgrade pursuant to N.J.S.A. 2C:44-1f(2). The statute allows the court to sentence a defendant one degree lower if "clearly convinced that the mitigating factors substantially outweigh the aggravating factors," and the interest of justice requires a downgrade. N.J.S.A. 2C:44-1f(2); see also State v. Megargel, 143 N.J. 484, 495 (1996). Defendant has not shown a reasonable probability that the sentencing judge would have found mitigating factors ten and twelve, concluded that the mitigating factors substantially outweighed the aggravating factors, and determined that the interest of justice demanded a sentencing downgrade.
Therefore, we conclude that defendant failed to establish that he was denied the effective assistance of counsel at sentencing.
IV.
We also reject defendant's contention that the PCR judge erred by failing to conduct an evidentiary hearing on his petition. An evidentiary hearing is required only when a defendant presents a prima facie case in support of PCR, there are genuine issues of material fact that cannot be resolved based on the existing record, and a hearing is needed to resolve the claims presented. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354 (2013) (noting that "an evidentiary hearing should ordinarily be granted to resolve any ineffective assistance of counsel claims" if defendant presents a prima facie case) (citing State v. Preciose, 129 N.J. 451, 462-63 (1992)). As we have explained, defendant failed to present a prima facie case of ineffective assistance of counsel. Therefore, an evidentiary hearing was not required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION