Opinion
DOCKET NO. A-3808-12T1
03-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ABDUL KABIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1231. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Abdul Kabia appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
In April 2008, defendant and two others, Basil Zachary and Adam Pizzo, were indicted for a robbery and shooting in Gloucester Township. Defendant was named in six counts of the indictment: first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). Defendant retained an attorney to defend him.
Zachary and Pizzo pleaded guilty pursuant to plea agreements and agreed to testify against defendant if necessary. After the cut-off date for plea negotiations, see R. 3:9-3(g), defendant's attorney learned that another attorney at his firm had represented Pizzo two years earlier in an unrelated criminal case. He informed defendant of that fact and advised him of a potential conflict of interest that might prevent him from representing defendant at trial if Pizzo were to testify. Defendant then accepted a plea offer from the prosecution to plead guilty to the second-degree charge of aggravated assault in exchange for a recommended sentence of seven years imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The Presiding Judge of the Criminal Division approved the plea agreement beyond the plea cut-off date. See R. 3:9-3(g).
On June 21, 2010, defendant appeared with his attorney and entered a guilty plea. Before proceeding with the plea hearing, the court questioned defendant about his willingness to waive any potential conflict that his attorney had because his firm had previously represented a potential witness in the case. Defendant stated under oath that he had fully discussed the matter with his attorney and that he was willing to waive any conflict and enter a guilty plea. The court then questioned defendant in accordance with Rule 3:9-2 about the terms of the plea agreement, his understanding of and willingness to relinquish his right to a trial before a jury, and the precise sentence he would receive if he pleaded guilty. Defendant gave clear, straightforward answers indicating his understanding. He also testified that he was pleading guilty voluntarily and of his own free will, and that he was satisfied with the legal advice and services of his attorney. As a factual basis for the plea, defendant admitted that, while in the company of Zachary and Pizzo, he shot the robbery victim in the arm. The court accepted the guilty plea to the charge of aggravated assault.
Before defendant was sentenced, he retained a new attorney and moved to withdraw his guilty plea on the ground that his plea attorney had a conflict of interest. The court reviewed the papers submitted, heard extensive oral argument, and denied the motion on January 14, 2011. Among the factors the court took into account was that the victim of the robbery and shooting was no longer in the United States and the prosecution would be prejudiced if it could not obtain his testimony for the trial. On the same date, the court sentenced defendant to seven years imprisonment in accordance with the plea agreement.
Defendant filed a notice of appeal from the judgment of conviction and also from denial of his motion to withdraw the guilty plea. This court designated the appeal for disposition on a sentencing oral argument calendar, see R. 2:9-11, because the appeal was from a guilty plea and raised issues that are routinely addressed on that calendar. Defendant claims he requested that his attorney ask for full briefing of the appeal and disposition on the court's plenary calendar, but appellate counsel did not do so.
Appellate counsel appeared before this court on October 19, 2011, and argued both the denial of defendant's motion to withdraw his guilty plea and the adequacy of the sentencing court's findings when it imposed the seven-year sentence. We issued an order on the same date remanding to the sentencing court "to consider the applicability of mitigating factor seven, N.J.S.A. 2C:44-1(b)(7)." Our order did not refer to the motion to withdraw the guilty plea. On October 31, 2011, the sentencing court issued a letter-decision and an amended judgment of conviction by which it re-imposed the seven-year sentence after following our directive on remand.
Defendant filed a PCR petition in August 2011, before the appeal was decided. He alleged ineffective assistance of counsel because of a conflict of interest of his plea attorney. Counsel was appointed for the PCR petition and filed a letter-brief in May 2012 that added an argument that appellate counsel also provided ineffective assistance on defendant's behalf because he allowed the appeal to be argued orally on this court's sentencing calendar. The trial court considered defendant's arguments and denied the petition without holding an evidentiary hearing.
On appeal, defendant argues:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF A VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND A PRIMA FACIE SHOWING OF A VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED FROM BEING MANIPULATED INTO ENTERING A PLEA BARGAIN THAT WAS INDUCED BY TRIAL COUNSEL'S CONFLICT OF INTEREST.
POINT II
DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE BY APPELLATE COUNSEL BECAUSE COUNSEL'S DECISION TO ARGUE DEFENDANT'S APPEAL BEFORE THE EXCESSIVE SENTENCE PANEL INSTEAD OF PURSUING A PLENARY APPEAL WAS NOT A LEGITIMATE STRATEGIC DECISION.
POINT III
THE PCR COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
In a PCR appeal, our standard of review is plenary on questions of law but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
We begin with a presumption that defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorneys provided ineffective assistance. Loftin, supra, 191 N.J. at 198.
Under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, not only must defendant prove that his attorney's "performance was deficient," he must also "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Here, having considered defendant's arguments on appeal, we affirm the trial court's decision to deny PCR relief essentially for the reasons stated in the oral opinion of Judge Anthony Pugliese dated November 30, 2012. We briefly add the following observations about defendant's specific arguments.
Defendant argues his trial attorney's conflict of interest caused him to accept the plea agreement although he had consistently wanted to stand trial. However, the attorney's alleged conflict was included as part of the argument on defendant's direct appeal and rejected by this court. Although our October 19, 2011 order did not expressly refer to defendant's motion to withdraw his guilty plea, that issue was raised and argued, as it frequently is on the oral argument sentencing calendar, and we implicitly rejected it by our order of October 19, 2011. Because the matter was presented and decided, it is not cognizable again on a PCR petition. R. 3:22-4, -5.
Nevertheless, accepting defendant's argument that the PCR petition raises a new issue of ineffective assistance of plea counsel that was not cognizable on direct appeal, we find no basis in the record to disturb the PCR court's decision.
The fact that an attorney from plea counsel's firm had represented Pizzo in a different case some two years earlier was fully disclosed to defendant and the court before defendant entered his plea of guilty. The judge at the plea hearing asked defendant whether he desired to waive any potential conflict and proceed with the plea, and defendant unequivocally answered that he did.
Contrary to defendant's argument, the alleged attorney conflict was not controlled by RPC 1.7 as a concurrent conflict of interest. The representations of defendant and Pizzo did not occur at the same time, and so, they were not concurrent. Nor was RPC 1.9(a) applicable because the attorney's representation of defendant and his firm's representation of Pizzo were not "the same or a substantially related matter."
The applicable rule under which a conflict of interest should be considered is RPC 1.9(c), which states:
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:Had defendant's case gone to trial, his attorney might have faced a conflict if Pizzo testified and the attorney was aware of information that would be to the disadvantage of Pizzo. That possibility never surfaced because defendant decided to take a plea offer and plead guilty. As matters stood at the time of the plea hearing, Pizzo was not a witness against defendant, and his attorney did not have to determine whether there was confidential information Pizzo had revealed to his firm that might be used to Pizzo's disadvantage. Because a conflict of interest did not arise, the attorney's representation of defendant was not a violation of the rules of professional conduct.
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Defendant suggests that his attorney pushed him to plead guilty although he wanted a trial. But nothing in the record suggests that defendant did not himself decide to plead guilty rather than hire a new attorney and go to trial. He did not express any hesitation when questioned during his plea hearing about the voluntariness of his guilty plea. In addition, the judge specifically asked him whether he wished to waive any potential conflict. Defendant answered yes.
In sum, Judge Pugliese correctly determined on the basis of the record that defendant's plea attorney did not have an actual conflict of interest and had not been ineffective in representing defendant for the plea. Had defendant been convicted at trial, he faced a sentence on first-degree charges of armed robbery as well as the aggravated assault and weapons charges.
Defendant also contends that his appellate attorney's services were deficient because the attorney failed to request that the appeal be considered on a plenary calendar rather than on an oral argument sentencing calendar. We find no merit in this argument. This court routinely hears argument on a denial of a motion to withdraw a guilty plea through the procedural mechanism established by Rule 2:9-11. The issue that defendant sought to raise on appeal was in fact raised and considered by this court. Although the order disposing of the appeal did not specifically make reference to the issue, it need not have done so. The order did not mean that this court neglected to decide the issue although defendant's appellate attorney raised it.
Moreover, being on a plenary calendar would not have changed the result of defendant's direct appeal. As we previously stated, we find no merit in defendant's argument that his plea attorney had a disqualifying conflict of interest.
Finally, we find no abuse of discretion in the determination of the merits of defendant's PCR petition without an evidentiary hearing. See State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION