Opinion
DOCKET NO. A-3939-13T2
04-05-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. TAQUALON FINCH, Defendant-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 05-04-0387 and 05-10-1080. Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Taqualon Finch appeals from a January 13, 2014 order denying his petition for post-conviction relief (PCR). We affirm.
I.
On September 16, 2004, the Mercer County Prosecutor's Office filed Accusation No. 04-09-0826 charging defendant with third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). On that same date, in accordance with a negotiated plea agreement, defendant pled guilty to the charge contained in the accusation and was sentenced to a two-year term of probation.
On April 27, 2005, a Mercer County grand jury returned Indictment No. 05-04-0387, charging defendant with nine counts involving the kidnapping, sexual assault, and robbery of a woman in Trenton. On August 12, 2005, a Mercer County grand jury returned Indictment No. 05-10-1080, charging defendant with four counts involving the sexual assault and robbery of another woman in Hamilton.
Facing over a century of prison time if convicted, on March 13, 2006, the trial date set for defendant on Indictment No. 05-04-0387, defendant entered an open plea of guilty on all counts of the indictment. In addition, defendant pled guilty to count one of Indictment No. 05-10-1080 — first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) — in exchange for the State's recommendation of a twelve-year term of incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutive to the sentence on Indictment No. 05-04-0387. Defendant also pled guilty to a violation of probation (VOP) stemming from Accusation No. 04-09-0826, with the understanding that the VOP sentence would run concurrent with the twelve-year term on Indictment No. 05-10-1080.
Indictment No. 05-04-0387 charged defendant with the following: first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count one); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (counts two and three); second-degree robbery, N.J.S.A. 2C:15-1(a)(2) (count four); third-degree attempted theft, N.J.S.A. 2C:20-3(a) and 2C:5-1 (count five); third-degree theft from a person, N.J.S.A. 2C:20-3(a) (count six); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count seven); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count eight); and fourth-degree theft by receiving stolen property, N.J.S.A. 2C:20-7(a) (count nine).
The plea agreement provided for the dismissal of the remaining counts of Indictment No. 05-10-1080, which charged defendant with: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count two); second-degree robbery, N.J.S.A. 2C:15-1(a)(3) (count three); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four).
On July 28, 2006, defendant appeared before Judge Pereksta for sentencing. On Indictment No. 05-10-1080, the court sentenced defendant to a twelve-year term of incarceration subject to an eighty-five-percent period of parole ineligibility pursuant to NERA to run consecutive to the sentence on Indictment No. 05-04-0387. On Indictment No. 05-04-0387, after merging several counts, the court sentenced defendant to a twenty-year term of incarceration subject to an eighty-five-percent period of parole ineligibility pursuant to NERA. On the VOP stemming from Accusation No. 04-09-0862, the court sentenced defendant to a concurrent four-year term of incarceration. In sum, defendant was ultimately sentenced to a twenty-year prison term subject to NERA on Indictment No. 05-04-0387, consecutive to the twelve-year sentence under Indictment No. 05-10-1080.
Defendant appealed his sentence, which we heard on our December 10, 2008 Excessive Sentence Oral Argument calendar. Appellate counsel argued defendant's aggregate term of thirty-two years was excessive, and that the trial court did not support its imposition of consecutive sentences. In addition, appellate counsel argued the kidnapping sentence should be reduced to fifteen years. We affirmed, finding that the sentence was not manifestly excessive or unduly punitive, nor did it constitute an abuse of discretion.
On July 21, 2011, defendant filed a pro se petition for PCR. On March 12, 2013, defendant — with the assistance of counsel — filed an amended petition contending that his plea was not entered into knowingly, voluntarily, and intelligently. Specifically, defendant alleged trial counsel gave him the impression that he was only "pleading open" to one count of aggravated sexual assault under Indictment No. 05-04-0387, and that all remaining counts would be dismissed or thrown out; that trial counsel advised him that his sentence under Indictment No. 05-04-0387 would run concurrent to the sentence he received under Indictment No. 05-10-1080; that trial counsel advised him that he would receive a concurrent sentence of eighteen-years imprisonment subject to NERA on Indictment No. 05-10-1080; and that trial counsel advised him to reject the State's plea offer of eighteen-years imprisonment subject to NERA under Indictment No. 05-04-0387 and twelve-years imprisonment subject to NERA under Indictment No. 05-10-1080 to run concurrent, and instead take an open plea under Indictment No. 05-04-0387.
By "pleading open," we understand defendant to refer to pleading guilty without a sentencing agreement. --------
In addition, defendant alleged trial counsel was ineffective at sentencing by failing to argue that the trial court should consider the real-time consequences of NERA and by failing to argue for shorter concurrent sentences; that appellate counsel was ineffective by failing to raise all appropriate issues during direct appeal; and that cumulative errors by trial and appellate counsel amounted to ineffective assistance.
In an oral opinion issued January 13, 2014, Judge Thomas M. Brown rejected all of defendant's PCR arguments, finding that defendant failed to establish a prima facie case of ineffective assistance of counsel. Judge Brown concluded "the signed plea forms and the testimony provided by [] defendant during the plea hearing clearly demonstrate that the plea was made voluntarily, with the understanding of the nature of the charges and the consequences of such plea." The judge emphasized that "defendant acknowledged that he read, reviewed with his attorney, and signed the plea forms[,]" and that the sentencing court "methodically outlined the terms of the plea and confirmed [] defendant's understanding of the agreement."
Judge Brown reasoned that, as a practical matter, an evidentiary hearing would not aid the court's analysis because defendant's trial counsel had passed away in September 2011. The judge nevertheless addressed the substantive arguments regarding ineffective assistance of counsel. First, he found that nothing in the record indicated trial counsel's performance was deficient. He further found that defendant had not presented any facts to suggest that, but for counsel's alleged errors, defendant would have insisted on going to trial. The judge dismissed defendant's sentencing arguments, noting counsel properly argued mitigating factors two, four, twelve, and thirteen, and that defendant's sentence was excessively long. Further, the judge noted these sentencing issues were procedurally barred because they were previously argued on direct appeal.
II.
On this appeal, defendant raises the following points for our consideration:
POINT ONE
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 SENTENCING AND APPELLATE COUNSEL.
A. The Strickland Standard.
B. Trial Counsel Rendered Ineffective Assistance at the Plea Stage by Improperly Advising the Defendant to Reject the State's Original Plea Deal and Providing Incorrect Advice To Defendant Regarding the Penal Consequences of Pleading Open to Indictment No. 05-04-0387, Which Resulted in the Defendant Receiving an Excessive Consecutive Sentence.
C. Trial Counsel Rendered Ineffective Assistance During Sentencing by Failing To Argue That the Real Time Consequences of NERA Should Have Been Considered and by Failing to Oppose a Consecutive Sentence.
D. Appellate Counsel Rendered Ineffective Assistance by Failing to Raise All Meritorious Issues on Direct Appeal.
POINT TWO
THE DEFENDANT'S GUILTY PLEAS WERE NOT KNOWING, VOLUNTARY, AND INTELLIGENT AS REQUIRED BY R. 3:9-2 AND, THEREFORE, THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND REMANDED TO ALLOW THE DEFENDANT THE OPPORTUNITY TO ACCEPT THE STATE'S ORIGINAL PLEA OFFER.
POINT THREE
THE PCR COURT ERRED BY FINDING THAT DEFENDANT'S CLAIM RELATING TO THE IMPOSITION OF A CONSECUTIVE SENTENCE WAS PROCEDURALLY BARRED BY R. 3:22-4.
Having reviewed the record we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Brown's comprehensive oral opinion. We add the following comments.
Defendant contends that he is entitled to withdraw his guilty plea because counsel misrepresented that defendant was pleading open only to one charge and that the sentences would run concurrent. We disagree. Rather, the plea colloquy made clear that defendant was pleading open to nine charges, the trial court and prosecutor specifically told defendant the sentences could and would be consecutive, and defendant said he understood. Representations a defendant makes under oath at the plea hearing constitute a "formidable barrier" for the defendant to overcome. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal[.]").
Moreover, even if the certifications presented by defendant are taken as true, and even if the alleged advice that defendant's sentence might be lower if he went to trial or pled open was deficient, defendant cannot show that he would have gone to trial, as he pled guilty despite being informed of the true facts about the plea and sentence. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985). Furthermore, defendant has presented no colorable claim of his innocence to support his request to withdraw his plea. See State v. Slater, 198 N.J. 145, 158 (2009) ("Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim."). "A whimsical change of mind by defendant, or the prosecutor, will not be a valid reason for altering the bargain." State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974).
Defendant's sentencing arguments are similarly unpersuasive. The PCR court noted that the issue regarding the imposition of concurrent and consecutive sentence was argued on defendant's December 10, 2008 direct appeal, and thus procedurally barred. Pursuant to Rule 3:22-5, prior adjudication of an issue on direct appeal will ordinarily bar PCR. See, e.g., State v. Harris, 181 N.J. 391, 494 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Marshall, 173 N.J. 343, 350-353 (2002); State v. McQuaid, 147 N.J. 464, 484 (1997). However, the rule is "relaxable where the constitutional problems raised are of substantial import." Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:22-5. Although defendant claims trial counsel failed to vigorously argue the real-time consequences of sentencing under NERA, or for a fifteen-year or concurrent sentence for kidnapping, trial counsel did argue for mitigating factors and pointed out the "shocking" length of the requested sentence. Moreover, defendant cannot show that the court would have imposed concurrent sentences for separate attacks on two women, or that such arguments would have succeeded. Rather, because of the substantial length of time between defendant's first-degree aggravated sexual assault crimes on two different women, there was no viable argument for concurrent sentences. See, e.g., State v. Carey, 168 N.J. 413, 428 (2001) ("Crimes involving multiple . . . victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences.").
Defendant's remaining appellate arguments are equally unconvincing. Appellate counsel did challenge the consecutive sentence under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), raised the real-time issue, and argued the sentence was excessive. Nothing in the record indicates that attacking his guilty plea based on defendant's limited education would have been appropriate or successful, as he responded appropriately during the plea colloquy.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION