Opinion
DOCKET NO. A-4074-13T2
06-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN CROSS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John V. Molitor, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-07-1600. Joseph E. Krakora, Public Defender, attorney for appellant (John V. Molitor, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Brian Cross appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant maintains that his plea counsel rendered ineffective assistance. We affirm.
On July 25, 2006, an Atlantic County grand jury indicted defendant on ten charges, including first-degree murder, N.J.S.A. 2C:11-3a(1) or (2). The indictment alleged that defendant shot the victim, Charles Martin, on March 7, 2001, resulting in his death. Defendant was sixteen-years-old at the time of the shooting. A companion, Brandon Still, was indicted and tried separately for his role in the murder.
Although a juvenile at the time of the offense, defendant was tried as an adult. The record is silent regarding the circumstances under which the Family Part waived jurisdiction and referred the action to the Law Division.
The factual background is set forth at length in our unpublished opinion affirming Still's 2003 convictions, following a jury trial, for felony murder, reckless manslaughter, robbery, and two firearm offenses, for which Still received an aggregate forty-five-year prison sentence with a thirty-year parole ineligibility period. See State v. Still, No. A-5456-02 (App. Div. Apr. 3, 2006) (slip op. at 2-6), certif. denied, 189 N.J. 648 (2007). For purposes of this appeal, we adopt the following concise factual summary set forth in Judge Bernard E. DeLury, Jr.'s March 28, 2014 written opinion denying PCR:
The incident giving rise to the indictment occurred on March 7, 2001[,] in Pleasantville, New Jersey. On [that] date, [defendant] and [Still] visited the home of
a friend where [defendant] encountered the victim, as well as other individuals. [Defendant] and [Still] became engaged in a verbal argument with the victim. The argument escalated into a physical confrontation during which the victim was shot three times, once with a .38 caliber weapon and twice with a .22 caliber weapon. The victim was pronounced dead at the scene. An autopsy revealed that the cause of death was the wound the victim sustained from the .38 caliber weapon. During his plea colloquy on March 31, 2008, [defendant] testified that he was the one that possessed the .38 caliber weapon.
Defendant was a fugitive for approximately five years after the shooting. He was arrested in St. Louis, Missouri in March 2006, at which time he allegedly gave police a false name and made incriminating statements.
Following an unsuccessful motion to suppress his statements to police, and immediately before his trial was set to commence on March 31, 2008, defendant pled guilty to an amended charge of first-degree manslaughter, N.J.S.A. 2C:11-4a. In return for defendant's plea, the State agreed to dismiss the remaining nine counts of the indictment. The State further agreed to recommend that defendant be sentenced to twenty-eight years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant reserved the right to argue for a lesser sentence. During the plea colloquy, defendant testified that he shot Martin with a .38 caliber handgun, and that he was aware from his review of the discovery that the .38 caliber bullet penetrated Martin's lung, heart, and liver, resulting in his death. Based on defendant's plea testimony, Judge DeLury determined that defendant pled guilty "freely and voluntarily" and "had the advice of competent counsel, with whom he is satisfied." The judge further found that no additional promises had been made to defendant and that he understood the range of sentence to which he was exposed.
On June 5, 2008, Judge DeLury rejected defendant's plea for leniency and sentenced him to the twenty-eight year prison term subject to NERA requested by the State. Defendant appealed the sentence imposed, which we considered on our excessive sentencing oral argument calendar, Rule 2:9-11, and we affirmed in an unpublished opinion. State v. Cross, No. A-6271-07 (App. Div. Aug. 18, 2009), certif. denied, 208 N.J. 368 (2011).
On that date, defendant also pled guilty on an unrelated indictment to fourth-degree riot, for which he received a concurrent 365-day prison sentence. Defendant does not challenge that conviction in his PCR petition.
Defendant filed a timely PCR petition, which he supported with a four-page certification dated August 1, 2009. Pertinent to this appeal, defendant asserted that plea counsel (1) failed to consult with him, keep him advised of his case, or provide him with complete discovery; and (2) induced him to plead guilty by promising that the court would sentence him to a fifteen-year prison term, subject to NERA. Additionally, defendant further certified: "I later learned that the two shots [] I fired at the victim [were] not the cause of death, therefore, I advised [plea counsel] that I did not wish to continue with the plea."
After hearing argument by assigned counsel and allowing defendant to submit a pro se supplemental brief, Judge DeLury issued a comprehensive written opinion denying the petition. Addressing defendant's claim that plea counsel failed to adequately communicate with him, the judge reasoned:
Trial counsel appeared on behalf of his client at least three times before the [c]ourt for the purposes of pursuing pretrial motions. Court records further reflect trial counsel's efforts to conference with his client and keep him advised of the proceedings and the evidence. Thus, [defendant's] bald assertions are plainly contradicted on the open record. . . .
Additionally, [defendant] has not made an argument that the outcome of the trial would have been any different if trial counsel kept [defendant] more informed about the development of the case . . . . In this case, it is more probable that the trial would have resulted in a guilty find[ing], especially in view of the [c]ourt's ruling pertaining to the admissibility of [] [defendant's] statement. It was that ruling that prompted [defendant] to seek a negotiated outcome. [Defendant] was charged with murder. His trial counsel was able to
obtain a favorable plea and sentence recommendation, even as the case was ready to proceed to trial after plea cut-off had occurred. See R. 3:9-3(g). After trial, [defendant] faced a minimum of [thirty] years in prison, during which he would have been ineligible for parole. He faced a maximum of life. He also faced [a] potential consecutive sentence [on] the unrelated riot charge. However, through trial counsel's diligence, he was able to obtain a plea arrangement that saved [defendant] from even greater penal exposure. As such, [defendant's] argument fails the Strickland test.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). --------
With respect to defendant's claims regarding the entry of his guilty plea, the judge explained:
Here, [defendant] told the [c]ourt that he understood he was entering a guilty plea to aggravated manslaughter. During the plea proceedings, [defendant] told the [c]ourt that he was satisfied with his counsel and his plea arrangement, he was pleading guilty voluntarily and that he was indeed guilty of the offenses that he was charged with. [Defendant] also set forth an adequate factual basis for each of the charges against him.
[Defendant] now argues that he took the guilty plea under the false impression that he would only receive [twenty] years instead of [twenty-eight] years because his trial attorney told him this. However, other than this bald assertion, there is nothing in the record to suggest that [defendant's] plea was anything other than knowing, intelligent and voluntary. Furthermore, [defendant] provided a thorough factual basis in order
to support his plea. See R. 3:9-2 (stating that a court shall not accept a guilty plea without first questioning a defendant and receiving [an] adequate factual basis for the plea). In this case, it appears that [defendant] is experiencing "buyer's remorse." He has little to lose and much to gain by his bald and unsupported assertion of counsel's alleged false statements. [Defendant] has made a series of claims relating to his understanding that his youth would allow the [c]ourt to sentence him below the recommendation of the prosecutor. However, these claims are belied by the record. [Defendant] was fully and clearly informed of his sentencing exposure by counsel and the [c]ourt. Under oath, [defendant] indicated his understanding of the plea bargain. There was no mention of a sentence lower than that recommended because the [c]ourt infers from the totality of the circumstances that there was no such promise or understanding that the [c]ourt would undercut the deal. In short, there is simply no evidence to support [defendant's] claim that his guilty plea should be set aside.
The judge concluded that because defendant did not establish a prima facie showing of ineffective assistance of counsel, no evidentiary hearing was required. This appeal followed.
Defendant raises the following points on appeal:
POINT I
THIS COURT SHOULD REVERSE THE LAW DIVISION'S DECISION TO DENY [] DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING
POINT II
[] DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE AS A RESULT OF HIS FAILURE TO FILE A MOTION TO WITHDRAW [] DEFENDANT'S GUILTY PLEA
To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient;" that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698; accord, State v. Fritz, 105 N.J. 42, 58 (1987).
To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "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." Ibid.
Whether an evidentiary hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states, in pertinent part:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.
Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463. To successfully demonstrate the likelihood of succeeding under the Strickland-Fritz test, a petitioner "must do more than make bald assertions[,] . . . [and] 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).
We are persuaded that the alleged deficiencies raised by defendant clearly fail to meet either the performance or prejudice prongs of the Strickland test. We affirm substantially for the reasons set forth in Judge DeLury's cogent written opinion. We add the following comments.
Our review of the entire plea transcript and plea form leads us to conclude that defendant's bald assertions are belied by the record. Defendant was clearly informed that, while his attorney was free to argue for a lesser sentence, the court had the right to sentence him to the twenty-eight-year prison term recommended by the State. No "other promises or representations [were] made by . . . defense [counsel]," according to defendant's answer to question twenty on the plea form. In accepting defendant's guilty plea, the court specifically found that "[defendant has] not been promised anything outside that document which I incorporate. He understands the range of sentence to be imposed."
Defendant's contention that plea counsel failed to provide him with discovery is belied by his testimony at the plea hearing that he was aware from his review of that discovery that the shot he fired from his .38 caliber handgun caused the victim's death. That testimony also fails to support the belated assertion in defendant's August 1, 2009 certification that the shots he fired did not cause the victim's death. Moreover, defendant failed to certify with any specificity what additional discovery he did not receive and how it would have changed the outcome of the case.
In his brief, defendant also argues that: he wished to retract his guilty plea at the time of sentencing; he told the court he did not intend to harm anyone when he fired the shots; and trial counsel was ineffective in not moving to withdraw the guilty plea "once it became apparent that [] defendant no longer desired to go forward with the plea." Again, however, a close reading of the sentencing transcript does not support these contentions. Rather, at the conclusion of his remarks to the court at sentencing, defendant stated: "Your Honor, I accept my plea" and "I humbly ask that you give me a more lenient sentence."
In any event, we further conclude that plea counsel's failure to file a motion to withdraw defendant's guilty plea did not constitute ineffective assistance of counsel or result in prejudice to defendant. In all plea withdrawal cases, "the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." State v. Slater, 198 N.J. 145, 156 (2009) (quoting State v. Smullen, 118 N.J. 408, 416 (1990)). "Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977)).
A trial court must consider and balance four factors when evaluating a motion to withdraw a guilty plea: "(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." State v. Munroe, 210 N.J. 429, 442 (2012) (quoting Slater, supra, 198 N.J. at 157-58). "No single Slater factor is dispositive; 'if one is missing, that does not automatically disqualify or dictate relief.'" State v. McDonald, 211 N.J. 4, 16-17 (2012) (quoting Slater, supra, 198 N.J. at 162).
While we are certainly cognizant of all the Slater factors, importantly, defendant has not asserted a colorable claim of innocence. Rather, in his August 1, 2009 certification, he admits firing two shots at the victim. Such conduct bespeaks the very degree of reckless behavior "manifesting extreme indifference to human life" that supports an aggravated manslaughter conviction. See N.J.S.A. 2C:11-4. Notably, in pleading guilty to manslaughter, as amended from knowing or purposeful murder, defendant acknowledged "an extreme indifference to the value of human life to point what may have been a loaded gun at someone and pull the trigger."
Where a defendant asserts his or her attorney was ineffective for failing to file a motion, he or she must establish that the motion would have been successful. Defendant has not met that burden 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).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION