Opinion
DOCKET NO. A-1192-10T2
02-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DENNIS JENKINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Nugent and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-06-0384.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dennis Jenkins appeals from an order entered March 16, 2010 by Judge Paul W. Armstrong denying defendant's petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant was sentenced on February 4, 2008 to an aggregate term of five years, with two years of parole ineligibility, after he pleaded guilty on October 11, 2007, to seven counts of third-degree burglary, N.J.S.A. 2C:18-2, three counts of third-degree theft, N.J.S.A. 2C:20-3, and two counts of fourth-degree theft, N.J.S.A. 2C:20-3, in connection with an overnight spree of automobile break-ins on May 5 and 6, 2007. Jenkins claims his defense attorney failed to pursue an entrapment defense, and pressured him into pleading.
Defendant was almost forty-five years old when he committed the offenses. He had had nine prior indictable convictions, most theft-related or drug-related. He also had ten municipal court convictions. He had previously served terms of imprisonment, and committed two parole violations. He was well-known to the police in Franklin Township.
According to the affidavit of probable cause of Patrolman Daniel J. McNamara, Jenkins told McNamara in February 2007 that after he was released from parole in connection with a prior conviction in March, he "would be 'going wild on this town.'" After several car burglaries in Franklin Township "matching Jenkins' usual Modus Operandi," police engaged in surveillance of Jenkins's address. They observed him leave his home at about 10:30 p.m. on May 5, 2007, and stop to pick up "an unknown black male." Officers observed Jenkins park, and proceed on foot with his companion. They observed Jenkins break into three vehicles at separate addresses, while his companion served as a lookout. To avoid detection, police stopped following Jenkins and maintained surveillance of Jenkins's vehicle. Police arrested him when he returned to his vehicle at about 5:15 a.m. carrying a backpack and a carry-on bag. "Jenkins' accomplice ran off at the time of Jenkins' capture and was not located after a search of the area." Defendant was ultimately indicted and charged with four other automobile burglaries that occurred that night.
Under the State's initial plea offer, the State proposed a ten-year extended term, with five years of parole ineligibility. However, defendant sought discovery from the State regarding his accomplice. He maintained that the accomplice was "known to the Franklin Township Police and was working with them at the time of the alleged incident." Defense counsel repeatedly sought, among other things, the surveillance officers' cell phone records and recordings, radio transmissions when police arrested Jenkins and not the accomplice, and information regarding the relationship between the accomplice and the police. Defendant was copied on two of counsel's requests.
The State had not provided the requested discovery by September 2007, when defense counsel again requested the material. But, defendant did not move to compel production, although a discovery motion was mentioned as a possibility at a status conference in July. Instead, the State lowered its plea offer to five years with two years of parole ineligibility, which defendant accepted in October.
In the plea proceeding, there was no mention of the accomplice. When Judge Julie M. Marino asked defendant if the plea agreement was acceptable to him, he answered, "Most definitely." He stated, in his plea form and orally before Judge Marino, that he entered the plea agreement voluntarily, that no one "forced . . . or threatened . . . or made" him enter his plea agreement. He then provided a factual basis for the burglaries of seven vehicles and related thefts.
At defendant's sentencing hearing, counsel addressed the issue of the accomplice, but only in the context of asking the court to consider defendant's cooperation with police by naming the man. Defendant addressed the court at sentencing to explain that his criminal activity arose from his drug abuse.
Judge Marino sentenced defendant in accord with the plea agreement. She noted defendant's extensive criminal record, and his exposure to an extended term as a persistent offender had he gone to trial.
Defendant filed a pro se verified petition for PCR on July 27, 2008, followed by a supplemental pro se certification. Appointed counsel then filed an amended verified petition. Defendant claimed his trial attorney was ineffective by failing to pursue an entrapment defense, and by pressuring him to plead.
Defendant raised additional grounds for PCR before the trial court, which he does not pursue before us. We therefore do not address them.
With respect to his claim that counsel was ineffective in failing to assert an entrapment defense, Jenkins stated in his pro se petition: "The fact that the Police did 'Entrap' the defendant and allow the confidential agent, to wit: the Co-defendant, to allow six more offenses to occur before the Police effected an arrest, reeks of Conspiracy." He asserted the police "were selectively investigating only Mr. Jenkins, in violation of N.J.S.A. 2C:30-6, and using the man they claim to not be able to apprehend, to lead Mr. Jenkins further into criminal activity." In his amended petition, he alleged "the co-defendant had the idea and design to commit the burglary and entrapped defendant to commit the burglary."
With respect to his claim that he was pressured into accepting the plea, defendant simply averred, "trial counsel pressured Petitioner to plead guilty."
The State responded that defense counsel secured a more favorable plea offer — five years with two years of parole ineligibility instead of ten years with five years of parole ineligibility — by raising, through persistent discovery requests, the relationship between the police and defendant's accomplice. The State argued that was a reasonable strategy, particularly given the difficulty defendant would face in proving entrapment, given the State's potential proofs of defendant's predisposition, based on his prior record and his statement to McNamara that he planned to "go wild" in the town.
On March 16, 2010, Judge Armstrong denied the petition without an evidentiary hearing. In a well-reasoned oral opinion, the court applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel. A petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) counsel's performance created a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068, 80 L. Ed. 2d 674, 693-94, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).
We quote at length from Judge Armstrong's analysis of defendant's claim that his attorney was ineffective by failing to pursue an entrapment defense:
In this case the petitioner asserts that trial counsel's failure to . . . raise the defense of entrapment rendered counsel ineffective in the Sixth Amendment context.
However, this court is convinced that a thorough review of submission from both sides, including the letter correspondence between the defense attorney and the Prosecutor, as well as the plea transcript indicate otherwise.
By all indication, namely, several letter correspondence between the Prosecutor and the defense counsel, where defense counsel inquired into the identification of the confidential informant and requested other specific information, the decision of the Somerset County Prosecutor's Office to cut their plea offer in half, as well as the plea colloquy, itself, defense counsel was intimately aware of the entrapment issue in this case.
The court will not engage in retrospective inquiries to determine the reasonableness of counsel's performance. See Strickland, [supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694].
Rather, the court will weigh the alleged deficiency to assess whether counsel acted within the realm of objective professional competence.
Parenthetically, the court recognizes the difficulty of prevailing on an entrapment defense generally.
The majority approach requires the defendant to raise the claim beyond a preponderance of the evidence and then to make a specific showing to the jury that he was induced to commit the crime and that as a direct result by police or their agents to commit such an offense by either one making knowingly false representations designed to induce the belief that the conduct is not prohibited or, two, employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it. N.J.S.A. 2C:2-12(a).
Moreover, the prosecution would be able to refute this argument by establishing that the defendant had a predisposition to commit the crime. A particularly forceful argument when lobbied against a defendant with 10 previous indictable convictions, the majority of which were theft-related.
The uncertainty of prevailing on an entrapment defense and the risks associated with trial, especially in light of a five-year plea offer, and the fact that the petitioner's criminal history made him eligible for an extended sentence, if convicted, solidifies the proposition not to pursue the entrapment defense was sound strategy.
Scrutiny of counsel's performance must be highly deferential and trial strategy is virtually unchallengeable. Strickland, [supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694].
Furthermore, as the Prosecutor concedes and this court can attest, it is the policy of the Somerset County Prosecutor's Office to withdraw plea offers upon defendant's submission of pretrial motions.
Such a decision further supports the conclusion that counsel was competent in deciding not to perfunctorily file pretrial motions or discovery requests. Rather than immediately file a motion, the foregoing conclusion of which was to revoke the plea offer, defense counsel was able to tactfully circumvent this result by tendering a letter alluding to a strong potential defense.
The implications of this strategy were to effectively preserve the petitioner's ability to submit motions and/or to utilize an entrapment defense while simultaneously ensuring the potentiality to plead guilty, if the petitioner chose to do so.
This court is at a loss to determine how a strategy which succeeds in cutting the petitioner's original plea offer in half while insuring the potentiality for any and all motion and trial defenses biased petitioner.
It would seem just the opposite.
Based upon counsel's maneuvering, petitioner now had the option to take a very favorable offer or proceed with motions and trial equipped with the tacit knowledge of the prosecution's case against him.
The court does not find nor does the petitioner elicit the specific prejudice he is required to demonstrate in order to satisfy the second prong of an ineffective assistance claim.
A showing of actual prejudice places a substantial burden on the defendant. Strickland, [supra, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699].
The Supreme Court has declared to limit intrusive post-trial inquiries into attorney performance that would increasingly be followed by a second trial. Id.
In cases where a defendant challenges a guilty plea based on ineffective assistance of counsel, in order to satisfy the prejudice requirement the defendant must show that there is a reasonable probability that but for counsel's errors he would not have pled 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);] State [v.] DiFrisco, 137 N.J. 434, [456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)].
In light of the overwhelming evidence against the petitioner, the documented exploration of potential defenses by counsel, the difficulty of success not only with regard to procedure but also considering the factual obstacles in this case presents for an entrapment defense and the leniency of the plea offer, this court is unable to discern any potential prejudice the petitioner suffered as a result of his decision to plead guilty.
The court also rejected defendant's claim that he was pressured into pleading, noting "petitioner has not set forth affidavits or any indicia of evidence whatsoever purporting to establish that counsel pressured him to plead guilty."
Defendant appeals from the denial of his petition and raises the following points:
POINT I
THE LOWER COURT ERRED IN FAILING TO FIND THAT MR. [JENKINS] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE LOWER COURT ERRED IN DENYING MR. JENKINS'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
We have considered defendant's arguments in light of our review of the record. We reject them, and affirm the denial of his petition for the reasons set forth in Judge Armstrong's thorough oral opinion. Judge Armstrong cogently reasoned that defendant had failed to satisfy the ineffectiveness prong of the Strickland test because defense counsel was obviously aware of the potential defense, counsel secured a more favorable plea offer by alluding to the defense, and the prospects the defense would succeed were uncertain at best.
We add one brief observation. Defendant's claim of a discarded entrapment defense also fell short of establishing a prima facie case of ineffectiveness because it was based on bald assertions. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (stating that a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999). Defendant claimed conclusorily that his accomplice "had the idea and design to commit the burglary and entrapped defendant to commit the burglary." Yet, he provided no details to support his claim. He provided no information about his relationship with the accomplice, including when, where and how they met. Defendant said nothing about when and where the accomplice allegedly suggested the plan to burglarize vehicles; what the accomplice actually said to entice defendant; defendant's alleged response; or who supplied the burglary tools. In short, defendant failed to establish it was ineffective to jettison the entrapment defense because he failed to establish the defense existed at all. Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION