Opinion
DOCKET NO. A-3802-14T3
04-13-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MIASHARI FOX, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Suter and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 11-04-0233. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, 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 Miashari Fox appeals the February 25, 2015 order, which denied her petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant was in her apartment on March 27, 2008 with at least two other people when her aunt, K.F., and defendant's stepfather, A.W., came over. Defendant was upset with them because she suspected they were involved in some manner when the Division of Child Protection and Permanency previously removed defendant's three children from her custody.
Defendant and K.F. began to argue. A fight broke out after K.F. punched defendant. Defendant then "picked up something," which was a knife, and "started swinging." Defendant stabbed K.F. in her chest under her arm, an injury that was life threatening and required emergency medical treatment. Defendant stabbed A.W. in the chest, killing him.
In April 2011, defendant pled guilty to an accusation that charged first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). When the plea was taken, defendant acknowledged being reckless when she stabbed A.W. She admitted stabbing K.F., but denied having an intent to cause serious bodily injury to K.F. She asserted she "wasn't trying to stab nobody. I just picked up something and just started swinging." She admitted swinging the knife at people. She asserted she was trying to defend herself.
Based on her plea to the accusation, a four count indictment was dismissed, which charged defendant with murder, N.J.S.A. 2C:11-3(a)(2); attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; aggravated assault, N.J.S.A. 2C:12-1(b)(1); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).
The court took a break in the proceedings so defendant could speak with her attorney to see if she wanted to proceed with the plea. When the proceedings resumed, defendant admitted she stabbed K.F. and A.W.
DEFENSE COUNSEL: And do you also recognize that as a result of that stabbing that you did so not appreciating what the stabbing could do, because as you also provided the Court with information, you had been drinking and possibly smoking some weed during the course earlier in the day; correct?The trial court accepted the guilty plea.
THE DEFENDANT: (indicating.)
DEFENSE COUNSEL: You do recognize that that is not a defense to any of the actions that you're charged with, but given what mental state you were in, you basically started acting in a reckless fashion when you were throwing the knife around; do you understand that?
THE DEFENDANT: Yes.
DEFENSE COUNSEL: Judge, I think under those circumstances, I believe there is a factual basis for the two charges.
THE COURT: [Counsel]
PROSECUTOR: In light of her explanation about what she believed earlier in self defense, the state is satisfied.
Defendant was sentenced in conformity with the plea agreement to concurrent terms of twenty-five years in prison on the aggravated manslaughter charge and ten years on the aggravated assault charge. Both sentences were subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In sentencing defendant, the judge took into consideration the presentence report, a sentencing memorandum prepared by defense counsel, three psychological reports, and a competency report. He found the aggravating factors outweighed the mitigating factors.
The court rejected mitigating factors two, three, and five noting "[t]he fact that defendant was reckless . . . doesn't imply necessarily that she didn't contemplate serious harm," and that any statements made by K.F. during the course of the verbal dispute with defendant were not sufficiently provocative to warrant defendant stabbing her. The court gave partial weight to mitigating factors eight and nine, finding that defendant showed "some remorse," but that her "character [was] not positively presented," as she had been "attempting to put one over on the court system by pretending to be mentally ill and she wasn't." The court also gave partial weight to factor ten, despite finding defendant not "particularly likely to respond affirmatively to probationary treatment," and in any event, "probation [was] not an option" given the charges. Finally, the court accepted mitigating factors eleven and twelve, finding that "[i]mprisonment of the defendant would entail a hardship to her dependents, and the defendant has cooperated by pleading [guilty]."
In 2012, we affirmed defendant's sentence, being satisfied it was "not manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion." State v. Fox, No. A-0734-11 (App. Div. June 27, 2012). The Supreme Court denied defendant's petition for certification. State v. Fox, 213 N.J. 46 (2013).
Thereafter, defendant filed a PCR petition, which alleged the ineffective assistance of her counsel. Defendant argued her counsel failed to object to the sufficiency of the factual basis for the aggravated manslaughter charge. She alleged counsel failed to argue at the sentencing hearing that certain mitigating factors applied in her case.
The PCR judge heard oral argument on the PCR petition in November 2014, but made no findings about the adequacy of the factual basis at that time, instead allowing counsel to confer regarding a possible resolution.
Defense counsel advised the court defendant was willing to "face the original indictment" if the PCR petition were granted, even though the court noted she could "spend the rest of her life in prison."
At the January 2015 hearing, the State recommended a new plea agreement. If defendant withdrew her guilty plea to aggravated manslaughter and pled again to the same charge, the State would recommend a twenty-year sentence of incarceration to run concurrently with the ten-year term for aggravated assault. When the plea was taken, however, the PCR court was not satisfied with the factual basis, stating the "original guilty plea stands. That has not been withdrawn. There is no manifest injustice, and another plea has not been offered or accepted."
On February 25, 2015, the PCR court issued an order and a comprehensive written opinion, denying defendant's PCR petition. The PCR judge acknowledged that while the trial court was initially "dissatisfied with the factual basis provided[,] [a]fter providing defense counsel a break to confer with [defendant], the court ultimately found that a sufficient factual basis was provided [for aggravated manslaughter] and accepted her plea." That factual basis satisfied "every element of the charge of aggravated manslaughter." The PCR court concluded that "trial counsel was not ineffective in failing to advise [defendant] to plead guilty to a lesser charge." The PCR court also found defendant was not prejudiced in pleading guilty to aggravated manslaughter because she had not been offered a plea to any other charge.
The PCR judge found as "patently untrue" that defendant's trial counsel was ineffective at sentencing for failing to raise applicable mitigating factors. Many of the same arguments made in defendant's PCR petition also were made by defense counsel in the sentencing memorandum he submitted to the court prior to sentencing.
The PCR judge found, based on Rule 3:22-5, that our prior affirmance of defendant's sentence barred the re-litigation of defendant's contention that the trial judge failed to "consider certain mitigating factors despite their presence in the record."
Defendant presents the following issues for our consideration in her appeal:
POINT I - THE PCR COURT ERRED IN DENYING FOX'S PETITION ON PROCEDURAL GROUNDS.We are not persuaded by defendant's arguments and affirm.
POINT II - THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING DESPITE THE FACT THAT FOX DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial Counsel Was Ineffective In Failing To Object To The Factual Basis Provided At Fox's Guilty Plea As The Factual Basis Did Not Support A Plea To Aggravated Manslaughter.
B. Trial Counsel Was Ineffective At Sentencing By Failing [T]o Argue For The Inclusion Of Certain Mitigating Factors And Against Certain Aggravating Factors.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated 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 (1987). In order to prevail on an ineffective assistance of counsel claim, defendant must meet a two-prong test by establishing that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
In the plea bargain context, "a defendant must prove that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original) (internal quotation marks and citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Defendant contends her trial counsel was ineffective for failing to object to the factual basis for her guilty plea to first-degree aggravated manslaughter, arguing that "the facts in the case only support a plea to second-degree manslaughter." Aggravated manslaughter is a criminal homicide in which "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]" N.J.S.A. 2C:11-4(a)(1). "In terms of distinguishing between reckless manslaughter and aggravated manslaughter, . . . the relevant 'circumstances' are objective and do not depend on defendant's state of mind." State v. Pindale, 249 N.J. Super. 266, 282 (App. Div. 1991). "The ultimate question for the factfinder is whether the homicide was committed under circumstances involving a mere possibility of death or did the circumstances involve a probability of death. If the former, the verdict must be reckless manslaughter, but if the latter the verdict must be aggravated manslaughter." State v. Curtis, 195 N.J. Super. 354, 365 (App. Div.), certif. denied, 99 N.J. 212 (1984). See State v. Campfield, 213 N.J. 218, 233 (2013).
Measured against this standard, we agree with the PCR court that trial counsel was not ineffective. Defendant admitted to picking up a knife and swinging it in a room where K.F., A.W. and others were present. We agree with the PCR judge's conclusion that "the act of stabbing and swinging a knife in a room full of people cannot be described as anything other than extreme indifference to human life." Defendant's conduct made "death highly probable," given that her actions led to the death of one victim and caused "life threatening injuries" to the other. Furthermore, we agree defendant cannot show prejudice in the context of her plea because she was not offered a plea to a charge of reckless manslaughter. Her only option was to go to trial on the four-count indictment where she faced the potential for a much longer sentence.
Counsel's failure to object to what was not error cannot support a claim of ineffective assistance of counsel. State v. Echols, 199 N.J. 344, 361 (2009). --------
Defendant contends her trial counsel was ineffective at the sentencing hearing by failing to address mitigating factors two, three, four, five, seven, eight, nine, eleven and twelve, N.J.S.A. 2C:44-1(b), or to argue against the application of certain aggravating factors. However, the sentencing judge took into consideration all the information and reports available in evaluating the applicability and weight of the aggravating and mitigating factors. The court specifically addressed mitigating factors two, three, five, eight, nine, ten, eleven and twelve. Mitigating factor four, that "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[,]" N.J.S.A. 2C:44-1(b)(4), was not supported by the record. The alleged punch by K.F. did not justify defendant fatally stabbing A.W. As for mitigating factor seven, the sentencing court was aware of her record. Defendant also cannot show prejudice because she has not shown a "reasonable probability" that the judge would have imposed a lesser sentence.
We comment briefly on defendant's argument that the PCR court erred in finding defendant's PCR petition was barred by Rule 3:22-5. That Rule provides that "[a] prior adjudication on the merits of any ground for relief is conclusive . . . ." Our review of defendant's sentence in 2012 included a review of the sentencing judge's discretion in applying and weighing these factors. To the extent defendant's PCR petition challenged the manner in which the sentencing judge weighed the aggravating and mitigating factors, the PCR court correctly found that claim was barred by Rule 3:22-5.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION