Opinion
DOCKET NO. A-1095-11T2
05-09-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN COTTRELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Virginia Drick Messing, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-05-0849, 08-02-0231, 08-02-0247, 08-02-0251.
Joseph E. Krakora, Public Defender, attorney for appellant (Virginia Drick Messing, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief). PER CURIAM
Defendant John Cottrell appeals from the trial court's March 11, 2011 order, after a non-testimonial hearing, denying his petition for post-conviction relief (PCR). Cottrell entered a plea on July 7, 2008 to nine third-degree offenses. The State had initially offered defendant a plea agreement that called for an aggregate sentence of ten years, with five years of parole ineligibility. Cottrell rejected the offer and successfully bargained for an aggregate term of twenty years with no period of parole ineligibility. Cottrell asserts his attorney assured him he would be released from incarceration sooner with the twenty-year sentence, than with the ten-year sentence with five years of parole ineligibility. He claims his trial attorney was ineffective by affirmatively misinforming him that he would be admitted to the Intensive Supervision Program (ISP). Cottrell claims he would have accepted the initial plea offer but for his attorney's misadvice. He seeks PCR in the form of specific performance of the original plea offer.
Having reviewed the record in light of applicable principles, we conclude defendant has presented a prima facie case of ineffective assistance and resulting prejudice. We therefore reverse and remand for an evidentiary hearing.
I.
We discern the following facts from the record, considering defendant's contentions "indulgently and . . . in the light most favorable to him." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In four separate Ocean County indictments returned between 2007 and 2008, Cottrell was charged with multiple counts of burglary, theft-related crimes, and other offenses. A May 2007 twelve-count indictment (Indictment #1) charged that on September 22, 2006, he committed two counts of third-degree burglary, N.J.S.A. 2C:18-2; third-degree eluding, N.J.S.A. 2C:29-2b; third-degree cocaine possession, N.J.S.A. 2C:35-10a(1); three counts of theft-related offenses, N.J.S.A. 2C:20-3, N.J.S.A. 2C:20-7; and five counts of third- and fourth-degree credit card-related offenses, N.J.S.A. 2C:21-6h, N.J.S.A. 2C:21-6c(1). A February 13, 2008 indictment (Indictment #2) charged that on May 29, 2007, he committed third-degree burglary, and two counts of third-degree theft by unlawful taking. N.J.S.A. 2C:20-3. A February 19, 2008 indictment (Indictment #3) charged Cottrell with another third-degree burglary, and another third-degree theft by unlawful taking, both on June 20, 2007. A second February 19, 2008 indictment (Indictment #4) charged Cottrell with one more third-degree burglary, and two more thefts by unlawful taking, which occurred on April 19, 2007. While all four indictments were pending, defendant was sentenced to a five-year flat term on an unrelated Monmouth County charge.
Cottrell, who was thirty-two years old at sentencing, had an extensive prior criminal record including twenty-seven juvenile adjudications and ten prior Superior Court convictions. It is undisputed that, to resolve the Ocean County charges, the State offered defendant a plea agreement that called for an aggregate ten year term, with five years of parole ineligibility (ten-with-five). The record does not indicate the specific charges upon which the proposed sentence would have been based, nor which would have been concurrent or consecutive to others.
Defendant rejected the ten-with-five offer. He wanted a sentence without a period of parole ineligibility. He and the State ultimately entered a plea agreement calling for an aggregate twenty-year term, with no parole ineligibility period. The twenty-year term consisted of four consecutive five-year terms, each relating to one of the four indictments. Although the agreement called for guilty pleas to multiple counts in a single indictment, those terms were to run concurrent with other terms of the same indictment, but consecutive to the terms of the other indictments. All counts to which he pleaded were third-degree crimes. He ultimately pleaded guilty, from Indictment #1, to motor vehicle theft, eluding, and two counts of burglary; from Indictment #2, burglary and motor vehicle theft; from Indictment #3, burglary; and from Indictment #4, burglary and motor vehicle theft.
Cottrell explained that he initially rejected the ten-with-five because of his interest in release under ISP. After he was sentenced in Monmouth County, his attorney there "told me to make sure that I got a flat sentence in Ocean County so I would be eligible for ISP." He claimed he also spoke to an "ISP officer" in Monmouth County, who encouraged him to apply for ISP, as he had a non-violent offense record, but confirmed that a parole ineligibility period would disqualify him for ISP.
N.J.S.A. 2C:43-11a(3) states that a person who must serve a period of parole ineligibility is ineligible for ISP.
Cottrell's public defender in Ocean County was unable to persuade the State to depart from its ten-with-five offer. So, Cottrell retained private counsel, David T. Schlendorf, "since I was trying to get a flat sentence, which would permit me to go to ISP." Initially, his new attorney was unable to obtain a flat-term offer, but the State was later willing to agree to a twenty-year flat sentence. Informed of the new offer, Cottrell was "shocked, since 20 years was definitely more than the ten years with the five year period of parole ineligibility."
However, Cottrell asserts that Schlendorf reassured him about his ISP eligibility, and when he would be released:
I also asked Mr. Schlendorf if I would still be eligible for the ISP, since I did not have a period of parole ineligibility. He stated that he would speak with the judge
and prosecutor. Mr. Schlendorf stated that he was advised that if ISP denied my application the first time, I was supposed to reapply after nine months, since ISP recycles every nine months. Moreover, he also told me that I would probably be denied the first time, but resubmit the ISP application the second time, and, "You won't be home sooner than four (4) months, but no later than eighteen (18) months. He also stated this to my wife and mother. (See Affidavits).
I was concerned about pleading to 20 years, since I knew the parole board would not look favorable at my record, however, Mr. Schlendorf promised me that I would be home in 18 months. I spoke with my wife and mother, thereafter, I accepted the 20 year term based on Mr. Schlendorf['s] advice that I would be home in 18 months and on ISP. (See Affidavits).
Cottrell's wife and mother submitted affidavits stating they were concerned about the wisdom of Cottrell taking a twenty-year term, instead of a ten-with-five, and Schlendorf assured them, "'[Cottrell] will not be home sooner than four months, but no later than eighteen months.'" They also asserted Cottrell "was also guaranteed that he would be able to enter the ISP, since he was told that he would be eligible after a second application, if he was denied the first time." However, they did not expressly attribute that guarantee to Schlendorf.
Cottrell then entered the written plea agreement on July 7, 2008. It called for the aggregate twenty-year flat term. The plea agreement provided that the term would run concurrent to the Monmouth County term, and the State would not seek an extended term. Cottrell did not respond to the plea form's question 20, asking him to "[l]ist any other promises or representations that have been made by you, the prosecutor, your defense attorney, or anyone else as a part of this plea of guilty."
At his plea hearing, Cottrell did not disclose Schlendorf's assurances about ISP. However, Cottrell points to one partially transcribed interchange at the very end of the plea hearing as evidence the subject was addressed.
THE COURT: You can step down, Mr. Cottrell. MR. COTTRELL: Just one more question? THE COURT: Yes. MR. COTTRELL: I believe — (indiscernible). THE COURT: Well, if you — if there's reason to, they will. All right? MR. SHENDORF: Thank you very much, your Honor.Cottrell argued that he asked the court if he could withdraw his plea if denied ISP, but his statements were unrecorded as "indiscernible." He argued that he perceived the judge's response as a positive answer.
On September 5, 2008, the court sentenced Cottrell in accord with his plea agreement. The court found aggravating factors three, six, nine and thirteen. N.J.S.A. 2C:44-1a(3), (6), (9) and (13). The court gave great weight to factors three, six and nine. The court found mitigating factor six applied because the court ordered restitution. N.J.S.A. 2C:44-1b(6). The court stated it was "clearly convinced that the aggravating factors substantially outweighed the mitigating factors." The court did not announce defendant's anticipated parole eligibility date. Cf. N.J.S.A. 2C:43-2(f).
Cottrell apparently applied for ISP soon after his sentence. The ISP Board rejected his application by letter on November 6, 2008. The ISP coordinator informed Cottrell he was deemed ineligible because of his "[e]xtensive criminal record." He reapplied in September 2009, and was advised the previous denial was final. Meanwhile, we affirmed his sentence on appeal in October 2009.
Cottrell then exchanged correspondence with Schlendorf in late 2009 and early 2010. Cottrell asserted that Schlendorf had misinformed him that he would be admitted to ISP within eighteen months. He intimated that had he known ISP would reject him, he would have accepted the ten-with-five offer. "I could [have] walked out of Judge Daniels' court room with the 10 over 5yr sentence, [d]id 5yrs and went [sic] home. Now that I have to deal with the Department of Parole and not I.S.P., I'm going to end up doing 10 years." Schlendorf asserted that Cottrell had decided not to accept a sentence with a parole ineligibility period in order to be eligible "for an earlier release date" than under a five-year parole ineligibility period.
Cottrell filed a pro se petition for PCR dated March 25, 2010. He argued that Schlendorf was ineffective by misinforming him that if he accepted the twenty-year flat offer, he would be admitted to ISP and would be released from prison within eighteen months. Cottrell alleged that he would have accepted the ten-with-five but for his attorney's misadvice about ISP eligibility. Cottrell sought specific performance of the ten-with-five plea offer that he rejected.
The trial court denied the petition after oral argument on March 2, 2011. The court held that Cottrell's assertion that Schlendorf assured him he would be released within eighteen months was unsupported, notwithstanding the corroborating certifications of his wife and mother. The court noted that Cottrell did not disclose Schlendorf's promises on the plea form. Also, Schlendorf's correspondence did not support Cottrell's claim. The court found: "Any arguments by the defendant that he was prejudiced in accepting the plea rather than . . . accepting the State's first plea . . . is questionable with regard to credibility." The court noted that the ten-with-five offer was a generous one; defendant rejected it, and decided to seek a flat sentence before hiring Schlendorf; and given defendant's extensive record, it was "highly unlikely" an attorney would definitively predict release within eighteen months. The court also rejected Cottrell's interpretation of the partly indiscernible exchange with the judge who accepted the plea. The court concluded Cottrell failed to establish a prima facie case, after extending him all favorable inferences.
Defendant appeals and presents the following points for our consideration:
POINT I
It was Judicial Error to Deny the Motion for Post-Conviction Relief, which set forth a Prima Facie Case Of Ineffective Assistance of Counsel.
POINT II
The Defendant is Entitled to a Remand to the Trial Court for an Evidentiary Hearing to Determine the Merits of his Contention that He was Denied the Effective Assistance Of Counsel.
POINT III
The Motion for Post-Conviction Relief is not Barred Procedurally by Rule 3:22-2 or Rule 3:22-4 as Constitutional Issues are Asserted.
POINT IV
All Points Raised by Defendant-Appellant in Any and All Prior and Subsequent Submissions to the Court Are Incorporated by Reference into This Brief.
II.
We review the PCR judge's legal conclusions 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). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421. The trial court's credibility determinations, to which we normally defer, are not implicated in this case. See ibid.
To establish a prima facie claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test under Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), that (1) his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." Cummings, supra, 321 N.J. Super. at 170. A hearing should be held if the PCR petition involves genuine issues of material fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). On the other hand, a court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170.
Turning to the specific claim here, a defendant is entitled to effective assistance in the process of a plea negotiation. Missouri v. Frye, 566 U.S. _____, ______, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. _____, _____, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012). An attorney provides ineffective assistance when he or she affirmatively misinforms a defendant about the consequences of a plea. Frye, supra, 566 U.S. at _____, 132 S. Ct. at 1406, 182 L. Ed. 2d at 388 (citing Padilla v. Kentucky, 559 U.S. _____, _____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010)); State v. Gaitan, 209 N.J. 339, 351-52 (2012) (stating that attorney provides ineffective assistance when providing "affirmative misinformation" about the immigration consequences of a plea), cert. denied, _____ U.S. _____, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); State v. Maldon, 422 N.J. Super. 475, 485 (App. Div. 2011) (noting prior cases held "that if a defendant is affirmatively misinformed about a collateral consequence that is a central issue in the plea negotiations, the plea may not be knowing and voluntary").
Where a defendant, as a result of attorney ineffectiveness, accepts a guilty plea instead of going to trial, the petitioner may satisfy the prejudice prong in a challenge to a conviction arising from the plea, by showing "a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also Gaitan, supra, 209 N.J. at 351 (same). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The United States Supreme Court recently addressed the different scenario, where the defendant asserts that, as a result of attorney effectiveness, he or she rejected a favorable plea offer — taking one that proved less favorable. Frye, supra, 566 U.S. at _____, 132 S. Ct. at 1409-10, 182 L. Ed. 2d at 392-93. In such a case, the defendant may prove prejudice by establishing a reasonable probability that but for counsel's errors, the result would have been different because the defendant would have accepted the earlier plea offer that was more favorable than the one ultimately approved. Ibid.
In Frye, the petitioner asserted his attorney was ineffective by failing to disclose a favorable plea offer before it expired. The petitioner ultimately entered a plea on less favorable terms. The Supreme Court held:
To show prejudice from ineffective assistance of counsel where a plea offer has . . . been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrateAs our Court has recognized, there may be cases where a defendant would have been prohibited from accepting a plea offer. See State v. Taccetta, 200 N.J. 183, 194-95 (2009) (where defendant claimed he would have accepted a plea offer if accurately advised of potential sentence after trial, defendant suffered no prejudice because court would bar him from entering perjurious plea).
a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it[.]
[Id. at _____, 132 S. Ct. at 1409, 182 L. Ed. 2d at 392.]
In Lafler, supra, a companion case to Frye, the Supreme Court addressed the situation where ineffective advice led the defendant to reject a plea offer and instead stand trial. To establish prejudice in that context, a defendant must show a reasonable probability he or she would have accepted the plea, it would have been presented to the court, the court would have accepted it, and the result would be less severe than that imposed upon conviction after trial. 566 U.S. at _____, 132 S. Ct. at 1385, 182 L. Ed. 2d at 407.
The Supreme Court in Frye did not address the question of the proper remedy in that case. Instead, the Court referred to its discussion in Lafler, supra, which, as we have discussed, involved a conviction after a trial, not a plea according to different terms. Frye, supra, 566 U.S. at _____, 132 S. Ct. at 1404, 182 L. Ed. 2d at 386.
In Lafler, supra, the Court stated that generally, "Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." 566 U.S. at _____, 132 S. Ct. at 1388, 182 L. Ed. 2d at 411 (citation and quotation omitted). The remedy must "neutralize the taint of a constitutional violation" but avoid granting a "windfall to the defendant" or "needlessly squander[ing]" the resources expended in a trial. Id. at _____, 132 S. Ct. at 1388-89, 182 L. Ed. 2d at 411 (citation and quotation omitted). The Supreme Court declined to hold that a defendant had a constitutional right to specific performance of the rejected plea offer. Id. at _____, 132 S. Ct. at 1391, 182 L. Ed. 2d at 414. The Supreme Court has recognized that even if a defendant accepted the favorable plea offer, the court may have retained the discretion to reject it. Frye, supra, 566 U.S. at _____, 132 S. Ct. at 1411, 182 L. Ed. 2d at 394.
The Supreme Court did not dictate the final remedy in Lafler. It required Michigan to reoffer the rejected plea in that case, but then acknowledged the trial court could "exercise its discretion in determining whether to vacate the convictions and resentence [the defendant] pursuant to the plea agreement, to vacate only some of the convictions and resentence . . . accordingly, or to leave the convictions and sentence from trial undisturbed." Id. at _____, 132 S. Ct. at 1389, 182 L. Ed. 2d at 412. The Supreme Court also stated that the cases over time will flesh out the factors a court must apply in exercising this discretion. Ibid.
In sum, neither Frye nor Lafler dictates the ultimate remedy in a case where a defendant loses the opportunity to accept a plea offer because of ineffective assistance, and then accepts a less favorable offer. Even if the first offer were revived, the trial court would retain its powers, under state law, to reject the plea.
Applying these principles, we conclude Cottrell has established a prima facie case of ineffective assistance and prejudice. Cottrell has provided more than a bald assertion that Schlendorf affirmatively misinformed him about his prospects for early release on ISP. Cottrell's assertions are supported by his wife's and mother's certifications. Such material misinformation about the consequences of a plea constitutes ineffective assistance. Frye, supra, 566 U.S. at ___, 132 S. Ct. at 1406, 182 L. Ed. 2d at 388.
Cottrell's claim is also supported by the circumstantial evidence. Cottrell sought a flat term because he knew, even before he hired Schlendorf, that a minimum term of parole ineligibility would disqualify him from ISP. However, that does not explain his decision to accept a flat sentence twice as long as the sentence the State initially offered. According to the State, the parole eligibility date under the twenty-year flat term was virtually the same as the minimum period of parole ineligibility under the ten-with-five offer. Thus, Cottrell was trading the exposure of ten additional years of incarceration for the perceived potential to participate in ISP.
We shall not independently calculate his parole eligibility dates. However, we note the flat eligibility for parole for a five-year flat sentence is one year and eight months; eligibility, based on commutation credits but no maximum work credits and minimum custody credits is one year, three months and twenty-five days; earliest eligibility, assuming all credits, would be one year and five days. However, these figures would be affected by jail credits and gap time. New Jersey State Parole Board, Sentencing Reference Guide, Appendix B: Parole Eligibility Table 36 (2005).
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As for prejudice, Cottrell asserts that he would have accepted the ten-with-five offer, but for Schlendorf's alleged misadvice. It is undisputed that the five-with-ten offer remained open, and was jettisoned only after Schlendorf negotiated the twenty-year flat term. As for the likelihood the court would also have accepted the plea agreement, we recognize the court is empowered to reject a plea. See State v. Daniels, 276 N.J. Super. 483, 487 (App. Div. 1994) (affirming rejection of plea agreement wherein the defendant pleaded guilty to third-degree theft with a recommendation of probation conditioned on 364 days of jail, where defendant was a persistent offender with fifteen juvenile adjudications and twenty-two adult convictions), certif. denied, 139 N.J. 443 (1995). However, the court accepted the twenty-year flat sentence, notwithstanding its findings, by clear and convincing evidence, that the aggravating factors substantially outweighed the mitigating factors — which would have supported the imposition of a mandatory minimum term. See N.J.S.A. 2C:43-6b. Under the circumstances, it is plausible the court would have accepted the ten-with-five. Thus, Cottrell has established a prima facie case of prejudice, as defined by Frye, supra, 566 U.S. at _____, 132 S. Ct. at 1409, 182 L. Ed. 2d at 392.
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION