Opinion
DOCKET NO. A-4565-09T4
10-05-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRANDON J. FRITZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-10-1619.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals the denial of his post-conviction relief (PCR) petition, which asserted he was denied the effective assistance of counsel when he pleaded guilty to kidnapping, aggravated sexual assault, and burglary, and was sentenced to a lengthy prison term. Defendant argues, among other things, that his trial counsel misled or coerced him into pleading guilty by "assuring him" the judge "would show leniency" and impose a lesser sentence in light of his age and remorse. We find no merit in any of defendant's arguments and affirm.
The record reveals that defendant was indicted and charged with: two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of first-degree robbery and one count of second-degree robbery, N.J.S.A. 2C:15-1; one count of second-degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a) and N.J.S.A. 2C:5-1; one count of second-degree burglary, N.J.S.A. 2C:18-2; and one count of third-degree theft, N.J.S.A. 2C:20-3. Prior to trial, defendant moved to be permitted to undergo a competency evaluation. Although the judge denied that motion, he did not foreclose defendant's right "to have a separate and independent psychiatric evaluation performed at his expense" by an expert of his own choosing.
Defendant later entered into a plea agreement, which exposed him to an aggregate sentence not to exceed forty years. In response to a thorough and searching inquiry during the plea hearing on November 1, 2007, defendant acknowledged that he understood the terms of the plea agreement and his potential penal exposure, and that he entered into the plea agreement freely and voluntarily. In providing a factual basis for his guilty plea to the first-degree kidnapping and the first-degree aggravated sexual assault that occurred in Lakewood on May 7, 2006, defendant admitted he grabbed the female victim, "shoved" her into his vehicle, drove to an isolated location ten miles from the abduction, brandished a pair of scissors, which he used to cut off the victim's shirt, and raped her anally, vaginally and orally. Defendant also acknowledged that he committed a burglary in Old Bridge on July 18, 2006.
The judge imposed consecutive terms on the three counts to which defendant pleaded guilty, aggregating in a prison term of forty years with an eighty-five percent period of parole ineligibility. Defendant appealed, arguing only that the sentence was excessive. We affirmed the judgment of conviction, State v. Fritz, No. A-4425-07 (App. Div. Jan. 8, 2009), and defendant's subsequent petition for certification was denied, 199 N.J. 541 (2009).
Defendant filed a pro se PCR petition on September 29, 2009. His sworn statement asserted he was "denied the effective assistance of counsel during plea negotiations, during sentencing, and on direct appeal"; the PCR petition did not provide any details in support of that general assertion. Defendant's appointed counsel later filed a brief, arguing that defendant
had authorized trial counsel to negotiate with the State and the [c]ourt that in exchange for [his] guilty plea to three counts of the indictment, [defendant] would be sentenced to concurrent terms, amounting to 27 years in prison subject to NERA (23 year minimum). As reflected in the sentencing minutes, trial counsel, in fact, addressed this proposed sentencing agreement on the record. In spite of the proposal, the trial court sentenced [defendant] to three consecutive terms of imprisonment, a total of 40 years subject to NERA (34 year minimum).Defendant further argued that his
trial counsel had misled and coerced him into pleading guilty by assuring him that he would receive the negotiated 27 year sentence. [Defendant] contends that he was persuaded by counsel that given his background, his remorse, and the support of the community, the [c]ourt, based on the established law in New Jersey, would show leniency. [Defendant] was only 22 years old, and had never been exposed to the legal system. He was naive, scared, and relied almost entirely on the advice of trial counsel. As a result, [defendant] went along with the plea negotiations and was shocked, dismayed and disappointed when he, in fact, received a 40 year sentence with 85 percent parole ineligibility, as opposed to the 27 years he anticipated.Defendant did not provide a sworn statement to support these contentions.
Defendant also argued in the trial court that his appellate counsel was ineffective for failing to raise in his direct appeal that the guilty plea was not knowing, voluntary or intelligent.
A different judge heard and denied the PCR petition by way of an oral decision rendered on May 12, 2010. That ruling was memorialized by an order entered the same day.
Defendant appealed the denial of his PCR petition, raising the following issues for our consideration:
I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.We find insufficient merit in Points I, II, IV, V and VIII to warrant discussion in a written opinion. R. 2:11-3(e)(2). As a result of that disposition, we need not reach the arguments contained in Points VI and VII. Lastly, we will not consider the arguments contained in Point III, which asserts that defendant's PCR trial counsel was ineffective, because the record is inherently insufficient to permit a resolution of those contentions on their merits. State v. Preciose, 129 N.J. 451, 460 (1992). We add only the following brief comments regarding the arguments contained in Points I and IV.
A. Counsel failed to provide effective assistance during plea bargaining.II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT
B. Counsel failed to provide effective assistance during sentencing.
C. Counsel failed to provide effective assistance since he did not adequately pursue competency evaluations and did not advise the court of defendant's suicide attempts.
D. Counsel failed to provide effective assistance since he did not file a formal motion to have the Public Defender's Office provide an expert on defendant's competency.
RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
III. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED (NOT PRESENTED BELOW).
IV. THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY AND DEFENDANT SHOULD HAVE BEEN PERMITTED TO WITHDRAW THE PLEA.
A. Defendant should be permitted to withdraw his guilty plea due to his mental condition.V. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE SENTENCE SHOULD HAVE BEEN REDUCED. VI. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
B. Defendant should be permitted to withdraw his guilty plea because he was misinformed concerning the terms of the plea bargain and was pressured into accepting the plea offer.
VII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
VIII. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Defendant is not precluded from filing an application for post-conviction relief asserting the alleged ineffective assistance of PCR counsel following today's judgment; we neither express nor intimate any view about the substance of the arguments contained in Point III.
Defendant provided no sworn statements to the trial court to support his argument that he was either "misled" or "coerced" in entering into the plea agreement, or that he somehow did not understand he could be sentenced to an aggregate prison term of forty years. His pro se PCR petition contained only the sworn generality that defendant was deprived of the effective assistance of counsel; he provided no details or specifics to support that claim. Later, when appointed counsel filed a brief in support of defendant's PCR arguments, no sworn statement was provided to support the contentions that he was "misled," "coerced," or otherwise did not understand the penal exposure he faced in pleading guilty. In fact, the only sworn information in the record on appeal regarding these contentions is to be found in the transcript of the plea hearing, where defendant repeatedly acknowledged under oath that he understood he could be sentenced to a forty-year aggregate term and that no one had advised him otherwise, as the following exchange between the judge and defendant reveals:
Q. Now, the State has agreed that that maximum sentence would be limited to 40 years for the three crimes together. Do you understand that?This and other testimony given by defendant at the plea hearing was uncontradicted by any other sworn statement either from defendant or his trial attorney. In light of this factual record, the PCR judge quite correctly concluded that defendant was not misled or coerced; thus, his ineffective assistance of counsel argument was without merit.
A. Yes, Your Honor.
Q. And you are reserving the right to argue through [your] attorney and to speak to the [c]ourt directly and provide whatever information you would like to the [c]ourt on sentencing day to see if the [c]ourt would impose less than the 40 years. That's implicit in every plea agreement. Do you understand that?
A. Yes, sir.
Q. But the plea bargain is that under the plea agreement, if the [c]ourt accepts it, the [c]ourt cannot send you to prison for more than 40 years. Do you understand that?
A. Yes, Your Honor.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION