Opinion
DOCKET NO. A-5595-12T2
04-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NORMAN FEDEE a/k/a LEONARD NORMAN FEDEE, a/k/a LEONALD FEDEE, a/k/a TONY KING, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Waugh. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-12-1700. Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Norman Fedee appeals a March 19, 2013 order denying him post-conviction relief (PCR). We affirm.
On February 8, 2011, defendant pleaded guilty to third-degree theft by illegal retention, N.J.S.A. 2C:20-9. Pursuant to the non-negotiated plea, defendant agreed to pay restitution of $30,000 to Randy and Dolores Davis, and an additional $30,000 in restitution to Julie and James Vann. The Vanns were the victims on the second count of the indictment, which also charged third-degree theft by illegal retention and was dismissed when sentence was imposed on March 25, 2011. Defendant received credit for 118 days of jail time. At some point, the United States Immigration and Customs Enforcement Agency (ICE) lodged a deportation detainer against him. No direct appeal was filed. On April 12, 2012, defendant filed this PCR petition.
Rule 3:9-3(c) states that the court can indicate to the prosecutor and defense counsel, in the absence of a plea agreement and with the consent of both counsel, "the maximum sentence it would impose in the event the defendant enters a plea of guilty, assuming . . . that the information in the presentence report at the time of sentence is as has been represented to the court at the time of the disclosure and supports its determination that the interests of justice would be served thereby."
The charges arose from two "agreements" defendant signed with the victims. The first, dated March 19, 2004, between defendant and the Vanns, reads:
This Agreement: Dated as of March 19th, 2004 between Norman Fedee' Known as Guarantor Residing at [redacted]
Julie & James Vann known as Investors Residing at [redacted]Defendant's signature was notarized.
IN CONSIDERATION: of mutual and conditions hereinafter set forth and for other good valuable consideration, the receipt and sufficiency of which is hereby acknowledge[d], the parties agree as follows:
1. That the Investors will Invest the sum of $30,000.00 (Thirty Thousand Dollars)
2 That the Guarantor in return will pay back the Investor the sum of $90,000.00 (Ninety Thousand Dollars) on or before November 20th 2004
This Agreement is set forth the entire agreement between the parties relating to the subject matter hereof and stands in the place of any previous agreement, whether oral or in writing. The parties agree that no amendment to this Agreement shall be binding upon the parties unless it is in writing and executed by both parties.
This Agreement shall ensure to the benefit of and be binding upon the respective heirs, executors, administrators and assigns of each of the parties hereto.
IN WITNESS WHEREOF: the parties hereto as of the first date above have executed this Agreement written:
__________
NORMAN FEDEE'
The agreement with the Davises contained precisely the same language in the same form, except the dates and amounts were different. The document was signed September 16, 2004, and stated that in exchange for the Davises' $30,000 "investment," defendant would "pay back the Investor the sum of $50,000 . . . on or before March 17th, 2005."
After defendant failed to pay back either couple, the Vanns and the Davises filed the criminal complaints which resulted in the indictment in July 2005. Defendant failed to appear for his arraignment on the indictment in early 2007. He was a fugitive from that date until late 2010. During that time, he was convicted of two counts of grand larceny in New York and had additional criminal matters pending there and in New Jersey when he returned to this state.
Once defendant was in the Burlington County Jail, the matter was scheduled for trial. In early 2011, his attorney successfully moved for severance of the two counts of the indictment.
After meeting with defendant in preparation for trial, defense counsel, by letter dated January 21, 2011, advised defendant that her investigator would attempt to obtain "the deed history to the property you mentioned." On February 8, 2011, after jury selection had begun, but before the trial had started, counsel sought to admit this evidence regarding the title to property located at 32 Essex Lane, which defendant now claims was crucial to his defense.
Defendant's theory was then, as it is now, that because of actions undertaken by Julie Vann (Vann), he was unable to complete renovations to 32 Essex Lane, and was thus unable to sell it, resulting in his inability to repay either the Vanns or the Davises. The chain of title was that on June 17, 2004, the seller conveyed 32 Essex Lane by way of a warranty deed to Vann. Six months later, on January 5, 2005, Vann, incorrectly described in that warranty deed for the same premises as an "unmarried woman," conveyed the property to defendant. That second deed purports to have been prepared by Vann. The Sheriff's deed generated by the mortgage foreclosure on the property is dated February 27, 2006.
It is noteworthy that during the course of the motion in limine, defense counsel, after obtaining the appropriate waiver from her client, stated that he had only recently told her about the property. Defendant disputed the assertion and said that he had asked his attorney to investigate the chain of title repeatedly, but that she had told him to leave it alone.
The trial court denied defendant's request to admit the evidence once the trial began, in part because the prosecutor represented that its introduction would require testimony from several more witnesses, thus adding to the length of the proceedings, and in part because it could result in additional charges being filed against defendant based on unspecified fraudulent transfers within the chain of title to the property.
In defendant's certification in support of his PCR petition, he said that the "investments" made by the Vanns and the Davises were to fund his plan to purchase distressed properties, improve them, then "flip them" for a higher price. Defendant claimed that because his "credit was overextended at the time" of the purchase of 32 Essex Lane, he approached the Vanns and asked Vann to purchase the property for him in exchange for a $5000 payment at closing.
Defendant further claimed in his certification that because he needed Vann to purchase the property for him, he "also asked her to give me Power of Attorney to transfer the deed for the [p]roperty. . . . Soon after beginning the rehabilitation of the [p]roperty I used the Power of Attorney from [Vann] to quit claim the [p]roperty to myself." He also later described the total $60,000 paid to him by the Davises and the Vanns as "loans." After he began rehabilitating the property, "some delays arose," and Vann "became impatient with the pace of progress."
Without further explanation, defendant claimed that "Van[n] was somehow able to have the [p]roperty transferred back to herself which foreclosed the possibility of me selling the [p]roperty and obtain[ing] sufficient funds (or indeed any funds) with which I could pay the Van[n]s and Davises the return I had promised them." He went on to say that he "unfortunately encountered some legal problems" in New York and was incarcerated from May 2009 to February 2010, and was arrested in New Jersey upon his return to this state.
On PCR, defendant argued that but for his attorney's failure to properly investigate his claims with regard to 32 Essex Lane, he would not have felt pressured to plead guilty. He attributed his inability to raise a meritorious defense to his attorney's "lack of diligence."
In her written decision, the PCR judge noted that on the day of the motion in limine, trial counsel referred to the January 21, 2011 letter advising defendant that the deed history of 32 Essex Lane was not a "panacea or even material" to his case. Counsel nonetheless agreed to have her investigator obtain the deed history to the property.
Having reviewed the transcript of the motion, the judge also observed that defendant's attorney claimed that defendant had only recently informed her of his belief that title to 32 Essex Lane raised a viable defense. Based on her review of the transcript and the attorney's letter, the judge found, as she had the day of the motion, that defendant did not bring the matter to his attorney's attention "until long after discovery deadlines had passed." She reiterated that, during both the motion and the PCR argument, defendant failed to establish the relevance of the deed history.
The judge who presided over the trial, including the motion in limine, was also the judge who accepted defendant's non-negotiated plea, imposed the sentence, and heard the PCR application.
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32 Essex Lane was not related to the charges described in the indictment, was not mentioned in the police reports, and was not referred to in the documents defendant signed with regard to the money either the Vanns or the Davises paid to him. The judge pointed out that his defense theory that Vann transferred the property away from him was not supported by the chain of title. Nor was his repayment of the monies contingent upon the sale of any property. She went on to say:
The essence of the trial would have been centered around whether or not [d]efendant did the work that he had contracted to do and paid to the Vanns the profit promised them in their contract in a timely ma[nn]er, rather than converting those funds for his own personal use. The deed history of 32 Essex Lane would have had no impact on the trial and was completely irrelevant to the elements of the offense.
The judge also referred to the rebuttal evidence the State claimed it possessed that would have been more damaging to defendant, who "manipulated a quit claim deed to the property." The prosecutor said that defendant sold the property a number of times and engaged in "a myriad of other fraudulent acts" relating to it. At trial, as in his PCR petition, defendant failed to "appreciate the potential destructive effect of the deed history for 32 Essex Lane." She observed that it was "difficult to conclude that [defendant] would have acted differently, even if the evidence was not omitted."
Defendant faced two indictments for third-degree thefts, and he could have been convicted separately in two trials generating consecutive sentences. Instead, "he was able to secure a time served sentence and [] disposition on both charges." Since defendant was not prejudiced as a result of the deed history being excluded, she concluded that he failed to establish a prima facie case of ineffective assistance of counsel and denied the petition without a hearing.
On this appeal, defendant contends:
POINT IWe find no merit to this argument. R. 2:11-3(e)(2).
THE PCR COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING BECAUSE [DEFENDANT] ESTABLISHED A PRIMA FACIE CASE THAT HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO INVESTIGATE HIS DEFENSE.
To demonstrate ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating that "counsel's performance was deficient;" that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must also establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).
Defendant failed to clearly explain, either at PCR or on this appeal, the manner in which the chain of title to 32 Essex Lane supported any defense. The agreement with the Davises was signed September 16, 2004. The Davises were due repayment of their $30,000 initial investment, plus the additional $20,000 return, on or before March 17, 2005. The agreement with the Vanns was signed March 19, 2004. The Vanns were due their $30,000, plus the additional $60,000 they were promised, on or before November 20, 2004.
The property was sold on June 17, 2004 to Vann by a third party not connected to either defendant or the victims. On January 5, 2005, Vann purportedly conveyed to defendant, either directly or through defendant's execution of documents using a power of attorney. The deed was not recorded until January 7, 2005. The Sheriff's deed, dated February 27, 2006, noted that the foreclosure judgment was obtained December 15, 2005. On their face, these documents only raise more questions than they answer. None, however, relate to the agreements defendant signed with the victims.
The Vanns signed their agreement with defendant three months before the property was conveyed to Vann, and it was deeded over to defendant some six months later, two months after the Vanns were to be repaid their "investment." The Davises signed on with defendant three months after Vann acquired title to the property and were due their return some two months after Vann conveyed the property to defendant. Like the Law Division judge, we find the chain of title "would have had no impact on the trial and was completely irrelevant to the elements of the offense[s]."
We are thus persuaded that the PCR judge's decision that no prima facie case was established was correct. Counsel's assessment of defendant's theory was accurate, in that the chain of title was potentially more damaging to defendant than no evidence at all on the point. Counsel's representation clearly fell within the range of competence demanded of attorneys in criminal cases. See DiFrisco, supra, 137 N.J. at 457. And we fail to see, in light of the favorable sentence defendant received, how the admission of this immaterial evidence would have deterred him from pleading guilty and caused him to insist on going to trial. See ibid.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION