Opinion
DOCKET NO. A-5247-13T3
04-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN J. GEIGER, III, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Kristen Miller, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 06-04-0546 and 07-01-0093. Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Kristen Miller, on the brief). PER CURIAM
Defendant John J. Geiger, III, appeals from a June 28, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
In 2007, defendant was facing a multitude of drug charges that were resolved by a plea agreement after his motion to suppress evidence was denied. On September 4, 2007, defendant pled guilty to Count One of Ocean County Indictment No. 07-01-0093, charging first-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1), and to Count Four of Ocean County Indictment No. 06-04-0546, charging third-degree possession with intent to distribute cocaine in a school zone, N.J.S.A. 2C:35-7. In return, the State agreed to dismiss the remaining ten counts of Indictment No. 07-01-0093, and the three remaining counts of Indictment No. 06-04-0546. The State also agreed to recommend an aggregate sentence of eighteen years in prison with forty-five months of parole ineligibility, pursuant to the Brimage guidelines.
Defendant's mother, who is not a party to this appeal, was separately charged in Count Twelve of Indictment No. 07-01-0093.
State v. Brimage, 153 N.J. 1 (1998).
At the sentencing hearing on December 3, 2007, defendant indicated that he had discussed with his plea counsel the filing of a motion to retract his guilty plea. The court inquired of defendant whether he wished to proceed with plea counsel or seek new counsel. Defendant gave no definitive reply. Plea counsel noted the "protracted nature of the plea negotiations in this case [and] the extensions of plea cutoff dates," during which defendant "sometimes want[ed] to move forward and sometimes not." Counsel stated, "I couldn't just go back to court and say, 'Well, he changed his mind again.' That is not a legal basis under the court rules . . . to retract the plea." Following this colloquy, the court sentenced defendant in accordance with the plea agreement.
Defendant appealed the denial of his suppression motion and the length of the sentence imposed. We affirmed in an unpublished opinion. State v. Geiger, No. A-2138-09 (App. Div. April 28, 2011).
Defendant was paroled in January 2011. In May 2012, defendant filed a pro se PCR petition, followed by an amended petition in March 2013, after counsel was assigned. The petitions alleged that plea counsel was ineffective because he failed to file a motion to withdraw defendant's guilty plea, per defendant's request, and because he failed to provide defendant with correct information regarding the length of his parole ineligibility period and the Brimage negotiation process. PCR counsel also argued that defendant's plea was not entered knowingly and intelligently and that defendant should be permitted to withdraw his guilty plea.
On June 28, 2013, Judge Joseph L. Foster conducted oral argument, issued an oral opinion, and denied the petition. The judge considered the PCR as a claim of ineffective assistance of counsel and as an application to withdraw defendant's guilty plea. Considering the factors set forth in State v. Slater, 198 N.J. 145 (2009), Judge Foster found no basis to allow defendant to withdraw his guilty plea. He found that defendant made no claim that he was innocent of the multitude of drug offenses with which he was charged.
Also, applying the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), Judge Foster found that defendant's ineffective assistance claims were not supported by the evidence. Considering the transcript of the plea hearing, he found that defendant was fully aware that the plea offer was formulated under the Brimage guidelines and provided for an eighteen-year prison term with forty-five months of parole ineligibility. Citing the accuracy of plea counsel's observation that there was no legal basis to withdraw the plea, the judge found that defendant failed to establish that plea counsel was ineffective under the first prong of the Strickland/Fritz test.
Additionally, under the second prong, defendant failed to demonstrate a reasonable possibility that, but for counsel's errors, he would not have pled guilty but would have insisted on going to trial. The judge elaborated:
The [c]ourt is not satisfied that this record supports that proposition so far as the second prong of [the] two-prong test is concerned based on what has been presented by [] [d]efendant. First of all, as was pointed out by the State . . . , there was substantial evidence which . . . would have been presented by the State at trial . . . as follows: In this matter, a thorough police investigation conducted over the course of approximately two months yielded numerous amounts of CDS found in plastic bags, jars and canisters, a digital scale, sandwich bag, a blue spiral notebook containing a list of names and phone numbers, along with drug records, a bulletproof vest, a firearm silencer and [twenty-nine] rounds of firearms ammunition and $30,000 in new and used currency. In addition, . . . the State was in a position to document a series of controlled buys involving [] [d]efendant. There was no incentive for this [d]efendant to go to trial in this matter.
In addition to that, there's no indication that if [] [d]efendant had been allowed to withdraw his guilty plea that he had any reasons to believe . . . that he would receive a more favorable offer than the offer that was ultimately placed on the table at the time of [] [d]efendant's plea of guilty in this matter. In accordance with the plea offer, he was sentenced to [eighteen years] incarceration . . . with a stipulation of [forty-five] months of parole ineligibility.
On the other hand [] that plea resulted in the dismissal of a series of other counts in two different indictments.
On the basis of just the two charges to which [] [d]efendant pled guilty, he was exposed to a potential [twenty-five] years [of] incarceration . . . and [a] more extended period of parole ineligibility. There's just no indication here that had [] [d]efendant done anything other than what he did, and that is plead guilty, that he would have received . . . a more favorable offer. So that's just the complete absence of any prejudice as far as this [c]ourt is concerned.
II.
On this appeal, defendant raises the following points for our consideration:
POINT I
[] DEFENDANT'S GUILTY PLEA WAS NOT KNOWING, VOLUNTARY, AND INTELLIGENT AS REQUIRED BY [RULE] 3:9-2 AND, THEREFORE, [] DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS PLEA.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO HEAR [] DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA PRIOR TO SENTENCING (Not Raised Below).
POINT III
THE PCR COURT ABUSED ITS DISCRETION BY REFUSING TO HOLD AN EVIDENTIARY HEARING WHERE [] DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. The Strickland Standard.
B. Trial Counsel Rendered Ineffective Assistance at the Plea Stage by Failing to Properly Advise [] Defendant of the Consequences of the Plea and Refusing to
File a Motion to Withdraw the Plea as [] Defendant had Requested.
C. Appellate Counsel Rendered Ineffective Assistance by Failing to Raise All Meritorious Issues on Direct Appeal (Not Raised Below).
As Judge Foster correctly noted, to show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland, supra, and adopted in Fritz, supra. "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid. In the context of a guilty plea, "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) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)), cert. denied, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
A court need not grant an evidentiary hearing unless a defendant has presented a prima facie case in support of PCR relief. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts in the light most favorable to defendant. Ibid. If the PCR court has not held an evidentiary hearing, our review is de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Here, as in State v. O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014), the trial court correctly viewed defendant's application as both a motion to withdraw his guilty plea, and a petition for PCR based on ineffective assistance of counsel. "The two requests for relief are distinct, and governed by different rules of court. Compare R. 3:21-1 (motion to withdraw plea), with R. 3:22 (PCR). They must be considered separately." O 'Donnell, supra, 435 N.J. Super. at 368.
Similar to O'Donnell, supra, 435 N.J. Super. at 365 n. 5, defendant here did not file a separate, free-standing plea withdrawal motion under Rule 3:21-1. --------
Thus, while a petition for PCR based on ineffective assistance of counsel is governed by the two-prong Strickland test,
the motion to withdraw a plea is governed by the four-factor test in Slater, supra. No one factor is dispositive, nor must a movant satisfy all four. 198 N.J. at 162. However, "[c]onsideration of a plea withdrawal request can and should begin with proof that before accepting the plea, the trial court followed the dictates of Rule 3:9-2." Id. at 155. The rule requires the court to determine if "there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2.
[O 'Donnell, supra, 435 N.J. Super. at 369].
III.
We begin by addressing defendant's claim that his guilty plea was not knowing, voluntary, and intelligent as required by Rule 3:9-2, and that he should be permitted to withdraw his plea on that basis. Specifically, in his PCR petition, and again on appeal, defendant argues "that he did not understand the plea process, did not comprehend the Brimage guidelines, and did not appreciate how they translated into the length of his sentence." He also contends that he was erroneously ensured by his plea counsel and by the court that he would be able to withdraw his plea if the disposition of his mother's case was unsatisfactory.
Defendant's claims are clearly belied by the record, as Judge Foster correctly found. The plea forms referenced the recommended eighteen-year sentence and the forty-five month parole ineligibility period "pursuant to Brimage guidelines — negotiated plea." A review of the plea transcript reveals that Judge Wendel E. Daniels, who took the plea, engaged in an extended colloquy with defendant about the expected length of his sentence, and the fact that his plea was not contingent upon the outcome of his mother's case. Defendant indicated that he understood, and proceeded with his plea. Defendant further testified that: he reviewed and understood the plea forms before signing them; his plea counsel explained in detail the nature of the two charges he was pleading guilty to and answered all his questions to his satisfaction; he was satisfied with counsel's representation; and that he was entering his guilty plea freely and voluntarily. Defendant also gave a factual basis sufficient to support his plea of guilty to each charge.
"For a plea to be knowing, intelligent[,] and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005). Here, the record clearly demonstrates that defendant "underst[ood] the nature of the charge and the consequences of the plea." Ibid. Consequently, defendant has also failed to establish Slater's second factor, since he has not demonstrated a sufficient reason to withdraw his plea.
The decision to grant or deny a motion to retract a guilty plea is discretionary, and, as noted, is governed by four factors: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58 (2009). Importantly, in addition to failing to satisfy the second factor, defendant has asserted no claim of innocence, so that he has also not satisfied the first factor.
As to the third factor, it is undisputed that the plea was extensively negotiated. This prong also favored denial of the motion. See State v. Means, 191 N.J. 610, 619 (2007) (negotiated pleas are entitled to a higher degree of finality).
Finally, Judge Foster found that there was no "demonstration here one way or another" as to whether the State or defendant would be unfairly prejudiced if the plea were to be withdrawn. In any event, the "State is not required to show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Slater, supra, 198 N.J. at 162. Accordingly, we conclude that the PCR court's denial of defendant's application to withdraw his plea is consistent with Slater and the record.
IV.
We next address defendant's claims of ineffective assistance of plea counsel. Defendant argues that plea counsel was ineffective in failing to properly advise defendant of the consequences of his plea, and in refusing to file a motion to withdraw the plea, as defendant requested.
With respect to defendant's first claim, a review of the plea form and plea transcript dispels any contention that plea counsel did not adequately explain the plea process or defendant's sentencing exposure. Even if we were to assume counsel did not do so, defendant could not prove prejudice as the record establishes that Judge Daniels advised him of the consequences of his plea, and defendant acknowledged them on the record. Defendant was also fully informed that his plea was independent of his mother's sentence.
We also conclude that the failure to file a motion to withdraw defendant's guilty plea did not constitute ineffective assistance of counsel. As plea counsel correctly pointed out, he lacked a sufficient legal basis to seek such relief. There must be more than just a "change of heart" to warrant leave to withdraw a guilty plea once entered. Slater, supra, 198 N.J. at 157. Even putting aside counsel's assessment, we have independently determined that defendant has failed to establish a basis to withdraw his plea, either under Rule 3:9-2 or under Slater. Where a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. Defendant has not done so here. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007).
We acknowledge that the better course would have been for plea counsel to withdraw, and for new counsel to have been retained or appointed to advocate for defendant's motion to withdraw his guilty plea. The failure to implement such a procedure can result in prejudice to a defendant. See State v. Barlow, 419 N.J. Super. 527, 537-38. Nonetheless, under the particular facts of this case, we agree with Judge Foster that defendant has failed to demonstrate prejudice under the second prong of Strickland. There is simply no basis in the record to conclude that defendant stood to negotiate a more favorable plea, or achieve a more favorable result if he elected to stand trial, given the strength of the State's proofs. Defendant has posited no defense to the myriad of charges lodged against him, especially after his motion to suppress evidence was denied. Plea counsel negotiated a plea that was subject to the Brimage guidelines and there is no credible evidence that defendant stood to achieve a different or better result. As such, defendant has failed to meet Strickland's second prong.
V.
For the first time on appeal, defendant argues that the trial court abused its discretion by refusing to entertain his request to withdraw his plea prior to sentencing, and that appellate counsel was ineffective in failing to raise this issue on appeal. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). "[A]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Id. at 386. Accordingly, we decline to address these arguments on appeal. In any event, the arguments lack merit, in view of our determination that defendant's motion to withdraw his plea, if heard by the sentencing court, would have been unsuccessful.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION