Opinion
DOCKET NO. A-1059-13T2
05-19-2015
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Ryan J. Gaffney, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 07-10-1638, 07-10-1722, 07-11-1824, 07-12-2004, 08-01-0158 and 08-02-0261. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Ryan J. Gaffney, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Alfonso Bowen, Jr. appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.
On the morning he was to face trial on over thirty counts spanning six separate indictments, defendant, twenty-two years old, pled guilty pursuant to a negotiated agreement to possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, and possession of a weapon (a handgun) in the course of committing a drug crime, N.J.S.A. 2C:39-4.1b on Indictment No. 07-10-1638; aggravated assault, N.J.S.A. 2C:12-1b(4) on Indictment No. 07-12-2004; possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 on Indictment No. 07-11-1824; possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 on Indictment No. 08-02-0261; receiving stolen property, N.J.S.A. 2C:20-7 on Indictment No. 07-10-1722; and causing fear of bodily injury by stalking, N.J.S.A. 2C:12-10 on Indictment No. 08-01-0158 in exchange for a recommended aggregate sentence of ten years with a thirty-three-month period of parole ineligibility.
In a lengthy plea colloquy, defendant provided considerable detail in his own words about each crime and took pains to explain that he alone possessed the cocaine and the gun, that he hid those items from his co-defendants and that they were unaware he possessed them. He testified he was pleading guilty of his own free will, that no one had forced or threatened him, and that he was satisfied with the services of his counsel.
Shortly after entering his plea, defendant filed a pro se motion to withdraw it. He claimed he was innocent and on the day he entered his plea, he was scared, confused and claimed he had been misled. Defendant claimed he was
told by one attorney one day, then told by another, I was about motions that I had put in for - for suppression of evidence, which was never heard, which is - I was told that it was heard and it was denied. So with that information I was like all right, whatever, I'll plead guilty, but I don't want to. I'm innocent. That's what I kept telling him that day in the back, and then he told me, well, this is what you've got to say if you want - if you want [her] to - to accept your plea. I was like all right. I was nervous, I was scared, because I didn't know - he's telling me I'm going to get 35 years.
The judge rejected defendant's claim. Noting the many delays defendant had engineered to avoid going to trial, including changing his mind about whether he would enter a plea and engaging new counsel just prior to a scheduled trial date, the judge explained she had established a firm date in order to end the recurring trial delays. When the day for trial arrived,
[counsel] come to court, I saw we're ready for trial, and you say no, I want to enter a plea. And as soon as I put the trial date off because now you've entered a plea, and as soon as you exculpate those [co-defendant] ladies that are friends with you and they get their PTI, then you decide [you] don't want to plea[d] anymore. I mean the ink is barely dry [when] you write this letter.Finding defendant's request to withdraw his plea "completely disingenuous" in light of the factual basis he provided at the plea hearing, the judge denied the motion and sentenced defendant in accordance with the plea agreement.
Defendant did not file a direct appeal, instead pursuing a timely petition for PCR. Although his PCR counsel was forced to concede that "10 with a 33 . . . it's a great deal for six indictments" and "as a defense attorney, looking at the six indictments, and looking at the outcome, I would have probably recommended to him myself you should take that deal, it's a very good deal," he argued "but that's not what [defendant] wanted." Acknowledging that defendant never produced the "witnesses and affidavits [defendant represented] he could have procured in his defense," counsel nevertheless argued defendant wanted to go to trial to proclaim his innocence but his counsel, Paul Bergrin, and Tom Moran who stood in for Bergrin at the plea hearing, did not listen to him.
Counsel also argued that defendant's fee arrangement with Bergrin, which he did not provide any evidence of, unfairly worked to pressure defendant to take a plea he did not want. Specifically, counsel claimed that defendant paid Bergrin a $10,000 retainer "up to a plea" with another $10,000 due before the start of trial. Counsel posited the following to the court: "So what do you think the pressures are on [defendant] the day of going to trial, when that [second] 10 grand hasn't been paid?"
The court, although acknowledging "[t]here's no way [defendant's] attorney would have been able to adjourn the trial date because he didn't get paid," nevertheless assumed for purposes of analysis that defendant's counsel pressured him to plead guilty. The judge stated:
I'm going to assume . . . that plea counsel and sentencing counsel were motivated to get this over with as soon as possible, keep whatever money they had and not try the case. I'm going to assume that. And I'm going to assume that they urged the petitioner to plead guilty, that they were not looking to try the case. I'm going to assume that motivation on their part. Maybe I'm going a bit outside the record, but what we know about these two - I wasn't sure about Moran, but I knew about Bergrin - he wanted to get his money and get out. I'll
assume that as his motivation in urging the petitioner to plead guilty.
Both lawyers were suspended from practice in this State subsequent to their representation of defendant. Bergrin was suspended from practice by the Supreme Court in 2009, see In re Bergrin, 199 N.J. 309 (2009), and subsequently convicted in federal court and sentenced to life imprisonment, see United States v. Bergrin, No. 13-3934, 2014 U.S. App. LEXIS 23818 (3d Cir. N.J. Dec. 18, 2014). Moran was suspended from practice by the Supreme Court in the same year, see In re Moran, 200 N.J. 202 (2009), and subsequently pleaded guilty in federal court to traveling in aid of a drug trafficking business, conspiracy to travel in aid of a drug trafficking business, and money laundering. Plea Agreement at 1, United States v. Moran, No. 10-535 (D.N.J. Aug. 4, 2010).
Even assuming that counsel having put pressure on defendant to plead guilty would constitute deficient performance under the first prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the court nevertheless found defendant not entitled to relief because he could not prove prejudice under the second prong. Specifically, the court found defendant could not prove the outcome would have been different, and weighing the Slater factors, particularly defendant's failure to assert a colorable claim of innocence, determined defendant was not entitled to withdraw his plea. Finally, the court concluded defendant's failure to even proffer the identities of witnesses or what they would have testified rendered his allegations too vague and speculative to warrant an evidentiary hearing. See State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
State v. Slater, 198 N.J. 145 (2009).
On appeal, defendant contends "the court applied an erroneous legal standard." He reasons that because the court "found that trial counsel had a financial conflict of interest that prompted counsel to pressure his client into pleading guilty. . . . [P]rejudice is presumed and the defendant is entitled to vacate the plea arrangement and proceed to trial." We disagree.
Defendant misapprehends the trial court's ruling. The court did not find an impermissible financial conflict of interest on the part of counsel as in, for example, the simultaneous representation of a codefendant by an attorney or a lawyer associated with that attorney amounting to a per se conflict of interest requiring a court to presume prejudice. See, e.g., State v. Bellucci, 81 N.J. 531, 543 (1980). Instead, the court merely assumed for purposes of argument that defendant could establish his counsel's performance was deficient in connection with his plea under the first prong of Strickland. The court was doing no more than determining that even if defendant met the first prong of the Strickland standard, he could not satisfy the second prong of that standard, which requires a showing of prejudice. See State v. Taccetta, 200 N.J. 183, 194-95 (2009) ("[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.") (quoting Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699).
A review of the plea transcript reinforces our view on this point. When the court noted that defendant had hired Moran's firm and asked defendant whether he was "satisfied with Mr. Moran," defendant responded that he "decided to stay with the public defender." The court replied, "Well, [the public defender] did help you out here today, right?" Defendant replied in the affirmative. In light of defendant's acknowledgment that the public defender had counseled him in connection with his plea and defendant's statement that he had "decided to stay with the public defender," a finding that defendant's failure to pay Bergrin to take the case to trial resulted in Bergrin pressuring him into pleading guilty would appear unfounded.
Even had the court made a finding that defendant's fee arrangement with his counsel constituted an improper conflict of interest, the court would have still been required to consider whether defendant was prejudiced by the arrangement. See State v. Miller, 216 N.J. 40, 60 (2013) (explaining the very limited circumstances in which the Court has presumed prejudice under the test enunciated in United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984)), cert. denied, 2014 U.S. LEXIS 1420, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014).
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Having reviewed the record, we are satisfied the court was correct that defendant failed to carry his burden on the petition. Defendant received a remarkably favorable plea offer to resolve very disparate charges (drug and weapons offenses, receipt of stolen property, aggravated assault and stalking) spanning six separate indictments. He risked consecutive terms on multiple offenses, and if convicted of even only two of the three charges that he possessed cocaine with the intent to distribute it within 1000 feet of a school, he would have faced a mandatory extended term. N.J.S.A. 2C:43-6(f); State v. Thomas, 188 N.J. 137, 149-51 (2006). Defendant's maximum exposure was over forty years with ten years of parole ineligibility. Because he did not provide any support for his bald assertion that he would not have pled guilty and taken advantage of that very favorable deal had Bergrin not pressured him to do so, we agree with the trial court that defendant failed to carry his burden on the petition.
We also reject defendant's argument that the court should have held an evidentiary hearing on the petition. A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b). No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under Strickland. Preciose, supra, 129 N.J. at 462-63. As defendant did not establish a prima facie case for relief, no evidentiary hearing was required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION