Opinion
DOCKET NO. A-3361-13T4
11-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TOMMY DOTSON, Defendant-Appellant.
Brian D. Driscoll, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Driscoll, on the brief). Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll.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, Morris County, Indictment Nos. 07-12-1582 and 07-12-1583. Brian D. Driscoll, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Driscoll, on the brief). Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao, on the brief). PER CURIAM
Defendant Tommy Dotson appeals from the September 3, 2013 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
A grand jury indicted defendant for third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-5 and N.J.S.A. 3C:39-5(b); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). The charges stemmed from defendant's theft of a firearm and jewelry from a residence where he was installing a Direct TV system in August 2006. Defendant admitted to a police detective that he stole the firearm and gave it to an individual who lived in Perth Amboy. The police later recovered the firearm in Perth Amboy after it was used in the commission of a crime.
Defendant rejected several plea offers instead deciding to await the outcome of several motions, including a motion to suppress his statement to the detective. On May 13, 2009, Judge Thomas V. Manahan denied the motion to suppress following a hearing at which defendant and the detective testified.
On July 10, 2009, defendant appeared at a pre-trial conference before Judge Manahan, at which time the State made a final plea offer of a seven-year term of imprisonment with a mandatory five-year parole disqualifier in exchange for defendant's guilty plea to all charges. Defendant was subject to the five-year parole disqualifier based on his prior burglary convictions. See N.J.S.A. 2C:39-7(b)(1). The State indicated the offer would expire that day if not accepted.
Defendant had several prior convictions for third-degree burglary, for which he served prison terms.
After consulting with plea counsel and family members, defendant decided to accept the plea offer. He testified, under oath, that: his decision to plead guilty was voluntary; he decided to plead guilty after considering the strength of his case and his analysis of the facts; he was pleading guilty because he was guilty; he met with plea counsel on many occasions prior to pleading guilty and discussed whether to proceed to trial, the chances of success, and the potential sentence if found guilty; and he decided to accept the plea offer rather than go to trial.
Defendant also testified that he understood the charges, the plea offer and plea forms, and the meaning of the five-year parole disqualifier. He appeared somewhat hesitant because of the five-year parole disqualifier, but testified he understood that he faced up to a twenty-year term of imprisonment as a persistent offender if found guilty at trial. He gave a factual basis for his plea, admitting that he stole a semi-automatic handgun and a wedding ring and engagement ring valued in excess of $500, he had no permit for the handgun, and he was not permitted to possess a firearm because of his prior burglary convictions.
Prior to sentencing, defendant filed a motion to withdraw his guilty plea. His assertions in his supporting certification were grounded on the ineffective assistance of plea counsel. For example, he claimed that plea counsel: never spoke to him about pleading guilty prior to the plea hearing; advised that he must make a decision about the plea offer by 12:00 p.m. the day of the pre-trial conference or go to trial and lose; and advised that if he went to trial, he "would lose because [he was] black and the jury would be all white and [his] prior convictions will make [him] look guilty." At the motion hearing before Judge Manahan, defendant further asserted that his plea was not knowing and voluntary because plea counsel did not advise him of his right to appeal the denial of his motion to suppress prior to pleading guilty or about how the jury would be instructed to consider his statement to the detective.
Defendant and plea counsel testified at the motion hearing. In a December 18, 2009 oral opinion, Judge Manahan found that defendant never indicated at the plea hearing that he was dissatisfied with plea counsel's advice or was misinformed or under duress. The judge stated that he considered the testimony of defendant and plea counsel and found plea counsel's testimony to be credible, logical and consistent. The judge found that counsel advised defendant that admission of his statement would be damaging to his case; advised defendant of the demographics of Morris County so he could properly decide whether to go to trial; and advised defendant of his right to appeal the denial of his motion to suppress. The judge also found that defendant had sufficient time to consider whether to plead guilty or proceed to trial, and counsel discussed with defendant the judge's decision to admit his statement and how the jury would consider the statement. The judge concluded that plea counsel's advice to defendant "was thorough [and] tactically and legally sound."
Analyzing the four Slater factors, the judge first found that defendant never asserted a claim of innocence during his testimony at the motion hearing, and there was no support for such claim. The judge next found defendant was under no duress when he pled guilty and that defendant's hesitancy during the plea hearing "was the product of understandable reluctance . . . to expose himself to [five] years in State Prison." The judge noted that defendant had the opportunity to consult with family members prior to pleading guilty and was well-aware he faced a mandatory five-year term of incarceration. The judge gave no additional or lesser weight to the existence of a plea agreement, and, having found no colorable claim of innocence, determined the State was not required to show prejudice.
State v. Slater, 198 N.J. 145 (2009). --------
Defendant appealed his sentence, arguing that Judge Manahan erred in denying his motion to withdraw his guilty plea. The appeal was heard on this court's June 1, 2011 Excessive Sentencing Oral Argument (ESOA) calendar, and adjourned to allow defense counsel time to request the missing transcript of defendant's testimony at the motion. It was later discovered there was no transcript due to a recording malfunction; however, Judge Manahan provided a written reconstruction of the record, again stating that he considered defendant's testimony in denying the motion.
The matter returned to the ESOA court, where defendant again challenged the denial of his motion to withdraw his guilty plea. Defendant raised no issue regarding the missing transcript or Judge Manahan's written reconstruction of the record. The ESOA court affirmed defendant's sentence, finding the issue on appeal related solely to the motion to withdraw and there was no abuse of discretion in the denial of the motion. State v. Dotson, No. A-4804-09 (App. Div. Aug. 29, 2012). Defendant did not file a petition for certification.
Defendant subsequently filed a pro se PCR petition, asserting essentially the same claims of ineffective assistance of plea counsel that he asserted for the motion to withdraw his guilty plea, and adding that counsel coerced him to plead guilty and failed to investigate the person who had the handgun. Defendant raised no issue regarding the missing transcript or Judge Manahan's written reconstruction of the record.
In a September 3, 2013 order and written opinion, Judge Mary Gibbons Whipple denied the PCR petition. The judge first held the petition was procedurally barred by Rule 3:22-5, as the issue of plea counsel's alleged deficiencies was largely adjudicated on the merits in defendant's appeal of his sentence. The judge also found there was no support for defendant's claim of coercion and no need for an investigation because defendant admitted he gave the handgun to a person in Perth Amboy.
Addressing the merits, Judge Gibbons Whipple found that Judge Manahan resolved defendant's claim of ineffective assistance of plea counsel, finding that counsel rendered competent legal advice. Judge Gibbons Whipple noted that defendant was aware when he pled guilty of his exposure to a twenty-year sentence, and that plea counsel successfully negotiated a favorable plea. The judge concluded that defendant could not establish that plea counsel rendered ineffective assistance and that but for counsel's deficiencies, he would not have pled guilty, as required by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42 (1987).
On appeal, defendant raises the following contentions:
POINT I: THE PCR COURT'S DENIAL OF THE PETITION RELIED EXTENSIVELY ON THE INCOMPLETE RECORD OF THE MOTION TO WITHDRAW THE GUILTY PLEA; WHICH IS MISSING DEFENDANT'S TESTIMONY (NOT RAISED BELOW).
POINT II: THE COURT ERRED IN FINDING THAT THE PETITION WAS PROCEDURALLY BARRED.
POINT III: THE COURT ERRED IN FINDING DEFENDANT WAS NOT PREJUDICED BY CLAIMED DEFICIENT PERFORMANCE OF COUNSEL.
POINT IV: THE COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.
We generally decline to address contentions raised for the first time on appeal that do not involve the trial court's jurisdiction or are not of public importance, such as defendant's contention in Point I. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997); State v. Robinson, 200 N.J. 1, 20 (2009). Nonetheless, the contention lacks merit. It is clear from Judge Manahan's oral opinion and written reconstruction of the record decision that he concluded, after considering defendant's testimony, that defendant was not deprived of the effective assistance of counsel.
We have considered defendant's remaining contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons Judge Gibbons Whipple expressed in her written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION