Opinion
DOCKET NO. A-4330-13T2
06-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID E. MANEY, a/k/a DAVID MANEY ELLIOT MANEY AJAX DAVID ELLIOT MANEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 10-06-1431, 09-05-1362, 01-06-2619, 00-09-2433 and 97-05-2265. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, David Maney, appeals the order of January 30, 2014, denying his petition for post-conviction relief (PCR). He claims he received ineffective assistance of counsel and was coerced into entering guilty pleas on four different occasions over a period of thirteen years. Each time defendant pled guilty to various crimes relating to the possession or sale of illegal drugs. We conclude that his application lacks merit, and we affirm the order of the PCR judge.
The facts underlying defendant's PCR petition are as follows. On August 25, 1997, defendant, who was eighteen years of age, pled guilty, under Indictment No. 97-08-0912, to possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5b(3); conspiracy, N.J.S.A. 2C:5-2; unlawful possession of a weapon, N.J.S.A. 2C:39-5; and distribution of cocaine, N.J.S.A. 2C:35-5. He also pled guilty, under Indictment No. 97-05-2265, to possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5b(3). In exchange for defendant's plea, the State recommended that he receive concurrent five-year prison terms with two years of parole ineligibility.
Throughout the plea hearing, defendant in no way suggested he was coerced or forced to plead guilty. He acknowledged on the record that he understood the proceedings and was voluntarily giving up his right to a trial. At one point, he stated that his counsel had not answered all of his questions, and was then allowed to speak to counsel. He then indicated he was satisfied with his representation.
At the sentencing hearing on the 1997 plea, defendant had no questions. There, his counsel suggested mitigating factors such as his youth and lack of intent to harm anyone. The judge rejected the latter. Thus, defendant was sentenced pursuant to the plea agreement. His counsel requested he be placed in a youth correctional facility. Defendant filed no appeal or PCR application until this one, filed over fifteen years after his sentencing. There is no credible evidence to support his claim of coercion or ineffective assistance of counsel.
On October 23, 2001, defendant pled guilty, under Indictment No. 00-09-2433, to conspiracy to distribute narcotics, N.J.S.A. 2C:5-2. He also pled guilty, under Indictment Nos. 01-06-2619 and 01-10-1558 to conspiracy to distribute narcotics, N.J.S.A. 2C:5-2; and possession of narcotics with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. At one point during the plea hearing, defendant indicated that he did not understand what was said by the judge, and the judge repeated what she had just said. Thereafter, the judge asked defendant if he understood, to which defendant stated that he did. At the plea hearing, defendant indicated he was satisfied with the services of his attorney. Defendant acknowledged that he had read and signed the plea agreement, and that he understood it. He also agreed that he understood the charges and was guilty.
Following the above exchange, the judge asked defendant for the factual basis for his agreement to plead guilty. Defendant then began to hedge and change his answers. At first he stated he did not have an agreement with anyone and was not doing anything. When the judge told him he should not plead guilty if he did not do anything, and that he could go to trial, defendant changed his story and admitted to agreements with two other individuals to steer customers to them to purchase drugs. Defendant testified he had an agreement to sell heroin to others and he held the money. He also admitted to selling heroin himself within 1000 feet of school property.
There was no evidence that counsel was ineffective at this plea hearing. The only evidence presented was that defendant was less than candid with the court. Further, there was no evidence of coercion, and in fact, defendant was told on the record he should tell the truth, and if he was not guilty, he should go to trial.
On December 7, 2001, defendant received concurrent sentences for his convictions based on the above plea, which required him to serve five years in prison with two years of parole ineligibility, as agreed to at the plea hearing. Defendant's counsel had approached the prosecutor about reducing his sentence to a four-year prison term after the plea hearing, but the prosecutor refused to reconsider the offer. Defendant was then given an opportunity to address the court before he was sentenced, and stated, "I don't want to say nothing." Defendant did not appeal the conviction or the sentence, and did not file a PCR petition until approximately twelve years after the sentence. There is no credible evidence to support his claim of coercion or ineffective assistance of counsel.
On March 8, 2011, defendant pled guilty, under Indictment No. 09-05-1362, to possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) and b(3). Defendant testified that he was satisfied with his counsel's services. He also testified that he had not been forced to enter the plea, and that he was doing so voluntarily. The judge carefully explained to defendant in detail his rights, and the effect of his plea. The agreement was that the prosecutor would recommend a four-year prison term without a term of parole ineligibility. The record reflects that at the time of this plea hearing, all of those involved were aware that there were other open charges pending against defendant. There is no credible evidence to support defendant's claim of coercion or ineffective assistance of counsel at this hearing.
On March 22, 2011, defendant appeared at a plea hearing represented by an associate of his attorney's firm. The judge asked defendant if it was acceptable to have an associate represent him at the hearing; defendant answered in the affirmative. The judge went one step further and asked defendant if he wished to have any additional time to speak to his counsel. Defendant responded that he did not. Counsel stated he had in fact spoken to defendant before the hearing.
On that date, defendant pled guilty, under Indictment No. 10-06-1431, to third-degree resisting arrest, N.J.S.A. 2C:35-7, which was amended to a disorderly persons resisting arrest. The State agreed to recommend time served. Defendant was asked if he had reviewed the plea agreement with his counsel and he testified that counsel reviewed the document with him and answered all of his questions. Defendant said about his attorney, "he did everything right." There is no credible evidence defendant was coerced to enter the plea or that his counsel were ineffective.
Finally, on June 9, 2011, defendant appeared before the court for sentencing on the March 8, 2011 plea. At that time, there was a discussion concerning whether defendant would be taken into custody and have his bail revoked, even if he was not sentenced on that date. From the record it appears the court had postponed defendant's sentencing hearing scheduled the week before, and had allowed defendant to remain out on bail. Shortly before the sentencing hearing, counsel advised the court that he could not be present. The judge had spoken to the prosecutor and counsel, and was under the impression that there had been an agreement that defendant would be taken into custody, but that the actual sentencing would occur on June 24, 2011.
Defendant advised the judge that it was his understanding from his attorney that he would not be taken into custody on the date of the hearing. The judge allowed defendant to call his attorney. The attorney and defendant had a conversation off the record. Defendant then advised the judge that his attorney was coming, and asked if the court would wait. The judge graciously agreed to hear the matter later in the day. When the hearing resumed, counsel advised the court that he had been in New York, and that he had returned from there to appear on behalf of his client. Counsel stated that since he was not expecting to argue the plea that day, he was less prepared than he would have been. As a result, he advised the court he would need a little extra time to address the court and provide the court with additional information, which he then proceeded to do.
Counsel provided a letter from defendant's probation officer that attested to the fact that defendant had been drug free and compliant during probation. He argued his client was a good candidate for probation because he was employed and changing his life and needed another chance. The prosecutor countered those arguments by pointing out defendant had twenty-one arrests as an adult; this was his seventh indictable conviction; and his criminal acts violated his probation. Defendant was given a chance to speak, but he declined the opportunity. Defendant was sentenced to the four-year prison sentence that he had agreed as a maximum sentence to at the plea hearing. There is no credible evidence that defendant was coerced into entering the plea agreement, or that counsel was ineffective in representing him. He did not appeal the conviction or the sentence.
This PCR petition was filed, alleging coercion and ineffective assistance of all of defendant's attorneys, only when defendant was facing enhanced penalties under federal law for prior state convictions. After hearing oral argument, the trial judge found that defendant failed to establish that any of his attorneys were ineffective under the Strickland/Fritz test and denied defendant's petition for PCR. This appeal followed where defendant raised the following issues:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE THE PCR COURT'S FINDINGS, WHICH WERE BASED SOLELY ON ITS BELIEF THAT TRIAL COUNSEL COULD NOT BE INEFFECTIVE BECAUSE DEFENDANT WAS THE RECIPIENT OF FAVORABLE PLEA BARGAINS, WERE CONTRARY TO POST-CONVICTION RELIEF PRIMA FACIE STANDARDS.
POINT II
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III
DEFENDANT SHOULD BE PERMITTED TO VACATE HIS GUILTY PLEAS.
To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must satisfy the two-prong Strickland/Fritz test. 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). The test requires a showing of (1) deficient performance by counsel and (2) prejudice to the accused resulting from such deficient performance. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. State v. Hess, 207 N.J. 123, 147 (2011) (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts
sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
When a guilty plea is involved, a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases" and (ii) "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." State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010) (citation omitted).
Applying the law to the facts of this case, the court found defendant had not presented any evidence other than bald assertions that could substantiate his claims and no hearing was required. We agree. Because defendant failed to present a prima facie claim of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462-63 (1992).
Defendant's other contentions, including his bare assertions of coercion to enter guilty pleas, are clearly without merit and do not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION