Opinion
DOCKET NO. A-0876-11T4
02-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH MOORE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda Claude-Oben, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-06-1129.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda Claude-Oben, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Keith Moore appeals from the February 25, 2011 order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant had alleged ineffective assistance of trial counsel in purportedly misinforming him regarding the amount of time he would spend in prison upon his plea of guilty. Defendant also claimed he was on medication that affected his ability to enter a plea, and thus sought to vacate his plea, overturn the judgment of conviction, and remand the case for a new trial. We affirm.
In March 2003, defendant was charged in a twelve-count indictment with two counts of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts one and two); two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts three and four); two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(2) (counts five and six); two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts seven and eight); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts nine and ten); and two counts of certain persons not to have a weapon, N.J.S.A. 2C:39-7(b) (counts eleven and twelve).
Although no plea bargain was offered by the State, the prosecutor agreed not to seek an extended term or consecutive sentences, and further agreed to dismiss the balance of the indictment. On October 4, 2004, defendant pled guilty before Judge Kevin G. Callahan to two counts of first-degree attempted murder (counts one and two). He was subsequently sentenced to an aggregate prison term of eighteen years with an eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the balance of the charges were dismissed.
Defendant appealed his sentence. On November 14, 2008, we heard the matter on an excessive sentencing calendar, R. 2:9-11, and remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). Defendant was sentenced to the same term. Defendant appealed, we heard the matter on another excessive sentencing calendar, and affirmed by order of June 28, 2010.
In 2009, defendant filed a pro se PCR petition, and then through assigned counsel submitted a supplemental certification and brief. Defendant claimed: (1) trial counsel represented he would receive a maximum sentence of fifteen years if he pled guilty; (2) the court erred in denying his application for an adjournment of the trial date because the attorney did not have adequate time to prepare for trial; and (3) defendant was under the influence of prescribed psychiatric drugs that impaired his ability to make a knowing plea. Defendant primarily relied upon question number seven on the plea form he signed that inaccurately stated a maximum period of parole ineligibility for the first two counts as ten years rather than the correct term of seventeen years.
In a lengthy written opinion, Judge Callahan denied the PCR petition, finding defendant failed to demonstrate the requisite elements to prove a claim of ineffective assistance of counsel under the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious 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 existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). See also State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).
The judge also conducted an analysis of the Slater factors and found defendant had not demonstrated a sufficient basis to permit him to withdraw his guilty plea. The judge referenced specific portions of the plea transcript with respect to defendant's arguments. He concluded that "[t]he well-documented record clearly contradicts [defendant's] assertion that his attorney [] misinformed him that he would receive fifteen (15) years in prison[,]" and further noted that he as the trial judge expressly told defendant he was eligible to serve up to twenty years in prison and possibly more if he violated parole. Moreover, defendant and Judge Callahan had discussed that defendant was taking a psychotropic drug and defendant expressly acknowledged that the drug had no impact on his ability to understand the plea proceeding. Defense counsel corroborated that defendant had "been lucid and been able to assist [him] every time [they've] spoken."
Defendant reasserts these arguments on appeal. We are satisfied they are undermined by the record and unsupported by the case law. We affirm substantially for the reasons set forth in Judge Callahan's comprehensive written opinion. Defendant failed to assert a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing. See Preciose, supra, 129 N.J. at 462-63. Although there was an apparent error in the plea form respecting the maximum NERA consequences, we are satisfied defendant was clearly informed by the court during the plea hearing that he faced a sentence of ten to twenty years with an eighty-five percent parole disqualifier and that no promises or agreements were made with respect to the length of his sentence, and that he acknowledged his understanding of these facts.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Slater, 198 N.J. 145, 157-58 (2009).