Opinion
DOCKET NO. A-1871-14T1
04-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEONARD FORD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-10-2375. Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Leonard Ford appeals from the October 6, 2014 order denying his petition for post-conviction relief (PCR). Judge Kyran Connor held a plenary hearing, at which defendant, his mother and brother testified, as well as defendant's privately retained defense counsel. After making credibility determinations, Judge Connor denied defendant's PCR petition. We affirm substantially for the reasons expressed in Judge Connor's thorough oral opinion of October 3, 2014.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree possession of a handgun, N.J.S.A. 2C:39-5(b); and two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). He entered a guilty plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), admitting that on May 13, 2008, he shot the victim, Mr. Cottman, in the "neck and head area" killing him. The remaining charges were dismissed, and defendant was sentenced to twenty-two years in prison subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2. Defendant appealed only the length of his sentence, and we affirmed in an order. State v. Ford, No. A-5733-08 (App. Div. June 29, 2011), cert. denied, 209 N.J. 97 (2012).
At the PCR hearing, the State called defense counsel, who testified he went over the proofs with defendant and ruled out both second-degree reckless manslaughter and self-defense as viable options. Defendant shot the unarmed victim when the victim told him he wanted to fight him in a fair fight. The victim was taking his shirt off when defendant shot him in the head. The two other men present in the basement of the housing complex where the killing took place were also unarmed. Judge Connor found defense counsel to be credible and found defendant's contrary testimony not credible.
At the PCR hearing defendant did not deny that he gave a factual basis for aggravated manslaughter, nor did he raise that issue on direct appeal.
Defendant raises the following issues on appeal:
POINT I: DEFENDANT'S PLEA TO AGGRAVATED MANSLAUGHTER SHOULD BE VACATED BECAUSE IT LACKED A PROPER FACTUAL BASIS. (NOT RAISED BELOW)
POINT II: DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY ADVISED HIM TO PLEAD GUILTY TO AGGRAVATED MANSLAUGHTER BECAUSE DEFENDANT'S KILLING OF COTTMAN WAS IN SELF DEFENSE.
POINT III: DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE ENTERED HIS PLEA TO AGGRAVATED MANSLAUGHTER BECAUSE COUNSEL FAILED TO ADVISE HIM OF THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER THAT CARRIED A MAXIMUM SENTENCE OF TEN YEARS.
POINT IV: DEFENDANT AT HIS EVIDENTIARY HEARING MET THE STANDARD REQUIRED UNDER STRICKLAND V. WASHINGTON SO AS TO BE ENTITLED TO VACATE HIS PLEA AND GO TO TRIAL.
POINT V: DEFENDANT WAS DEPRIVED OF EFFECTIVE COUNSEL BECAUSE HIS ATTORNEY FAILED TO
PROVIDE ESSENTIAL SERVICES REQUIRED IN DEFENDING A CRIMINAL DEFENDANT.
We first review the well-established principles guiding our PCR review. Defendant's petition arises from the application of Rule 3:22-2, which permits collateral attack of a conviction based upon a claim of ineffective assistance of counsel within five years of the conviction. R. 3:22-2(a); R. 3:22-12(a)(1). To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) "the deficient performance [truly] prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
There is a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We must therefore engage in a "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-19 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997)).
In cases brought by a defendant who has entered a guilty plea, the defendant satisfies the first Strickland prong if he or she can show that counsel's representation fell short of the prevailing norms of the legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The defendant proves the second component of Strickland by establishing "a reasonable probability that" the defendant "would not have pled guilty," but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 138-39 (2009)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
We defer to Judge Connor's credibility findings at the PCR hearing. State v. Ways, 180 N.J. 171, 196 (2004). We rely substantially on his decision with regard to the issues involving effective assistance of defense counsel.
The only issue raised on appeal not decided by Judge Connor in his well-considered opinion, is the issue raised by defendant for the first time before us, that the factual basis for his plea was insufficient. We reject this argument for two reasons. First, a defendant may not raise for the first time on PCR an argument that could have been raised on direct appeal. R. 3:22-4(a).
Second, defendant's factual basis was sufficient. Shooting an unarmed man in the head or neck area point-blank satisfies the definition of aggravated manslaughter: "recklessly caus[ing] death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). The fact that defendant did not explicitly admit to his extreme indifference to human life is of no moment. The facts he described in his plea allocution manifested such an indifference.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION