Opinion
DOCKET NO. A-4265-11T2
06-30-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHNNIE LANCASTER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Peter J. Baker, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-02-799.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Peter J. Baker, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Johnnie Lancaster appeals from the denial of his petition for post-conviction relief (PCR). He alleges ineffective assistance by plea counsel, sentencing counsel, and PCR counsel. We affirm.
I.
According to the Presentence Report and plea colloquy, on February 15, 2007, narcotics officers observed defendant, within 1,000 feet of a school, selling glassine bags of heroin to Troy Johnson and Calvin Jennings, who were arrested with the heroin. Officers stopped defendant's car and found him in possession of heroin.
The grand jury indicted defendant with the following Counts: One - possession of heroin, N.J.S.A. 2C:35-10(a)(1); Two - possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3); Three - possession of heroin with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7; Four - distribution of heroin to Johnson, N.J.S.A. 2C:35-5(a)(1) and (b)(3); Five - distribution of heroin to Johnson within 1,000 feet of a school, N.J.S.A. 2C:35-7; Six - distribution of heroin to Jennings, N.J.S.A. 2C:35-5(a)(1) and (b)(3); and Seven - distribution of heroin to Jennings within 1,000 feet of a school, N.J.S.A. 2C:35-7.
Defendant had been convicted on three prior occasions of "school-zone" offenses in violation of N.J.S.A. 2C:35-7, for which he received an ordinary-range sentence in 1996, an extended term in April 2000, and another extended term in September 2000. Because of these prior school-zone convictions, defendant was again eligible for an extended term that would increase the maximum sentence from five to ten years. N.J.S.A. 2C:43-6(a)(3), -6(f), -7(a)(3), -7(c). An extended-term sentence would also require parole ineligibility for a mandatory minimum period of between "one-third and one-half of the sentence imposed by the court or three years, whichever is greater." N.J.S.A. 2C:43-6(f). The court was required to impose such an extended-term sentence "upon application of the prosecuting attorney." Ibid.
On October 24, 2007, the first day of trial, defendant, after conferring with counsel, wished to plead guilty to two school-zone offenses, Counts Five and Seven. After defendant and counsel filled out a plea form, defendant in the plea colloquy confirmed his understanding that he was pleading guilty without a plea agreement. The court accepted defendant's guilty pleas to Counts Five and Seven.
The prosecutor moved for an extended-term sentence under N.J.S.A. 2C:43-6(f). On June 24, 2008, the court granted the motion. After reviewing the PSR showing defendant's three prior school-zone convictions, as well as prior convictions for robbery, drugs, escape, and possession of weapons, the court found aggravating factors three, six, and nine, and no mitigating factors. The court sentenced defendant to ten years in prison with five years of parole ineligibility on Count Five, and a concurrent term on Count Seven of five years in prison with three years of parole ineligibility.
Defendant appealed, challenging only the sentence. We affirmed. State v. Lancaster, No. A-4154-08 (App. Div. Apr. 7, 2011). Defendant filed a pro se PCR petition. PCR counsel filed a counseled brief, and presented oral argument. The PCR judge, who had presided over the plea and sentencing, rejected defendant's claims without an evidentiary hearing.
II.
Defendant appeals, raising the following arguments:
POINT ONE
THE DENIAL OF MR. LANCASTER'S PETITION MUST BE REVERSED AND THE MATTER REMANDED BECAUSE MR. LANCASTER WAS DEPRIVED OF HIS RIGHT TO COUNSEL DURING HIS INITIAL PCR. (Not Raised Below)
POINT TWO
IN THE ALTERNATIVE, IF THIS COURT DOES NOT REMAND FOR AN INITIAL HEARING, THE MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING ON MR. LANCASTER'S CLAIMS THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO TELL MR. LANCASTER THAT HE WAS EXTENDED TERM ELIGIBLE BEFORE HE PLED GUILTY AND BY FAILING TO ARGUE ANY MITIGATING FACTORS AT SENTENCING.
To show ineffective assistance of counsel, defendant must meet the two-pronged test of 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). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted).
Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid. at 279. In the context of a guilty plea, "a defendant must prove that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (alternation in original) (quotation marks omitted).
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, (alteration in original) cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts "'in the light most favorable to defendant.'" Ibid.; accord R. 3:22-10(b).
If the PCR court has not held an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.
III.
We first address defendant's claim that plea counsel was ineffective for allegedly failing to advise him he was eligible for an extended term. To the contrary, the record demonstrates that defendant was aware he was eligible for an extended term.
Defendant had previously pled guilty to three school-zone offenses. For the more recent pair of those offenses, he had received extended terms of seven years in prison with three-and-one-half years of parole ineligibility. Further, he argued that the prosecutor offered him an extended term of the same duration after he was charged with the current school-zone offenses. Thus, defendant was aware that he could receive an extended term for those school-zone offenses.
Before and after opening statements, defendant offered to plead guilty to two more school-zone offenses. In the plea form, defendant acknowledged he was pleading guilty to "charges that require a mandatory period of parole ineligibility or a mandatory extended term." He also recognized that the minimum mandatory period of parole ineligibility was eight years, which could occur only with an extended-term sentence.
The eight-year period of parole ineligibility apparently represented the total if the court ran consecutively the mandatory five-year period for the extended-term sentence and the three-year period for the five-year sentence. The court ultimately imposed those periods of parole ineligibility, but made them concurrent.
Further, defendant was well aware that the prosecutor had not given up his right to apply for an extended-term sentence. Because trial had already commenced, the court made clear to defendant that he could only plead "to the indictment," that is, with no plea bargain. After conferring with counsel, defendant confirmed that he was "pleading to the indictment," which effectively meant Counts Five and Seven, as the remaining counts would have merged into those counts.
In the plea form, defendant explicitly agreed that the prosecutor had not promised he would not seek an extended term. Defendant further recognized that the prosecutor had not waived his right to seek a period of parole ineligibility. Moreover, defendant admitted that the prosecutor had not agreed to "a lesser sentence or period of parole ineligibility than would otherwise be required."
Furthermore, defendant acknowledged in the plea form that the prosecutor did not agree to recommend a sentence or to be silent at sentencing. Defendant recognized in the plea form and orally that no other promises or representations had been made to him, other the prosecutor's promise to dismiss the remaining counts.
The court found that defendant "pled guilty freely and voluntarily, understood what he was doing, waived his rights, [and] understood the sentence to be imposed pursuant to the plea agreement." The prosecutor immediately advised that "the State will be seeking an extended term based on the prior record of this defendant." The prosecutor also sought revocation of bail. Plea counsel opposed bail revocation, but no one expressed surprise that defendant was eligible for, or that the prosecutor was seeking, an extended term.
On October 30, 2007, the prosecutor filed a motion seeking an extended term under N.J.S.A. 2C:43-6(f). On December 7, 2007, sentencing was deferred to make sure that the prosecutor's motion for an extended term was properly served on defendant. At sentencing on June 24, 2008, defendant agreed he had signed for that motion on November 5, 2007, and defendant's new attorney conceded the motion was timely served within fourteen days of the October 24 plea. See R. 3:21-4(e). Nowhere in these prolonged proceedings did defendant or sentencing counsel claim that an extended term was not contemplated in the plea.
When the court granted the motion for an extended term, neither sentencing counsel nor defendant suggested that an extended term was contrary to their expectations. Indeed, sentencing counsel asked the court to impose an extended term of the same length defendant had been offered before trial. Defendant, who had refused to be interviewed for the PSR, declined to say anything before sentencing. In defendant's appeal challenging the sentence, appellate counsel did not dispute the propriety of the extended term.
Defendant now claims that plea counsel failed to advise him that he was eligible for an extended term. However, we have not been provided with an affidavit or certification by defendant making that assertion. "In evaluating whether a prima facie claim has been asserted, '[a]ny factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification . . . before the Court may grant an evidentiary hearing." State v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(c)). A "'petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.'" Ibid.
In any event, as the PCR court found, defendant's claim of ignorance is belied by the record. Defendant's plea form specifically advised that he was pleading guilty to charges which could require "a mandatory extended term," and that the prosecutor had made no promise that he would not seek "an extended term." Both counsel signed the plea form, and defendant initialed every page. In the plea colloquy, defendant made clear that plea counsel read him the questions on the form, defendant had given his own answers to the questions, and defendant understood the questions and answers. The record thus indicates that plea counsel did advise defendant he could face an extended term.
Counsel and the court agreed that defendant need not sign the plea form because there was no plea agreement.
Defendant argues that there was little time for plea counsel and defendant to discuss his plea, but the record shows that defendant and counsel had already spoken about pleading guilty to the school-zone counts before the trial began. After the opening statements, the trial court gave defendant and counsel additional time to discuss such a plea. After fifteen minutes, defendant and counsel returned with the completed plea form, and confirmed that defendant was pleading guilty to those counts. Therefore, they had ample time to discuss defendant's eligibility for an extended term, as demonstrated by the plea form they together completed.
Defendant incorrectly asserts the plea form did not mention the possibility of an extended term. He also misconstrues the plea form's question and answer: "Specify any sentence the prosecutor has agreed to recommend: 'No sentencing recommendation.'" That answer indicated that the prosecutor had not agreed to make a sentencing recommendation favorable to defendant. Defendant's answers elsewhere in the plea form confirmed that the prosecutor made no sentencing promises to defendant.
Defendant notes that the plea form stated that the "Statutory Maximum" for each school-zone count was five years, making his "total exposure as a result of this plea" ten years. Defendant also notes that there was no discussion of the extended term in the colloquy, and that the prosecutor's oral motion for an extended term came after the court accepted his guilty pleas. These observations are not dispositive, however. As set forth above, defendant was already aware of the possibility of an extended term based on his previous school-zone convictions and on the other parts of the plea form. This is corroborated by the absence of any expression of surprise or protest after the prosecutor's motion.
The form was properly filled out, because the questions were asking about the statutory maximum for the third-degree school-zone offense. N.J.S.A. 2C:43-6(a)(3). After defendant's sentencing, the plea form was revised to add a question and answer stating the possible length of the mandatory extended term.
Rule 3:21-4(e) permits the written motion for an extended term up to fourteen days after a defendant's guilty plea. Even where the defendant pleads guilty "pursuant to a negotiated disposition," the prosecutor may make an oral motion either "at or prior to the plea." Ibid.
Defendant does not challenge the propriety of the plea form, the plea colloquy, or the prosecutor's motion. In any event, such a challenge would be barred by Rule 3:22-4(a) because it could have been raised on direct appeal. See also R. 3:22-3.
Defendant argues that the only reason to plead guilty was to avoid an extended term, and so he would not have pled guilty had he known he was eligible. To the contrary, as the trial court surmised and plea counsel confirmed, defendant pled guilty to "throw[] himself upon the mercies of both the prosecutor's office, as well as the court." In fact, the court was merciful by imposing concurrent rather than consecutive sentences, thereby sparing defendant a 50% higher prison term and a 60% longer period of parole ineligibility. Defendant and his counsel may have hoped for more mercy from the court or prosecutor, but even if that hope, in "hindsight, was mistaken, [it] cannot transform [defendant's] voluntary plea into an involuntary one." State v. DiFrisco, 137 N.J. 434, 455 (1994). "Strickland . . . demands that the ineffective-assistance-of-counsel analysis 'eliminate the distorting effects of hindsight.'" Id. at 458 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).
Importantly, defendant faced serving an extended term whether he pled guilty or went to trial and was convicted. He chose to plead guilty after hearing opening statements that offered no obvious prospect of acquittal. He cannot suggest that the prosecutor upon conviction would not have sought an extended term had he been convicted, given defendant's three prior school-zone convictions and two prior extended terms. Under the circumstances, defendant's choice to appeal to the mercy of the court was reasonable. Because defendant would receive an extended term whether he pled guilty or "went to trial and was convicted," there is no basis to believe that, with additional advice, he would have foresworn seeking mercy and "would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 211 (1985). Indeed, the PCR judge, who had presided over the trial, the plea, and the sentencing, found it irrational for defendant to claim that he "would have continued with the trial."
Because defendant neither showed he was unaware of his eligibility for an extended-range sentence, "nor provided any support for his bald assertion that he would not have pled had he [received such advice] . . . , he is not entitled to an evidentiary hearing." Gaitan, supra, 209 N.J. at 376.
IV.
Both in his brief and at oral argument, PCR counsel advanced defendant's claim that plea counsel was ineffective for not advising him that he was eligible for an extended term. Nonetheless, defendant asserts that PCR counsel was also ineffective.
Defendant argues that PCR counsel's method of orally arguing that claim violated the Supreme Court's proscription in State v. Rue, 175 N.J. 1 (2002). Relying on Rule 3:22-6, the Court held that "[i]n no event, however, is [PCR] counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition. That kind of conduct contravenes our PCR rule." Id. at 19. We will assume Rue's proscription survived the 2009 amendment of Rule 3:22-6(d).
Before 2009, Rule 3:22-6(d) provided that PCR "'counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit.'" Rue, supra, 175 N.J. at 13 (quoting R. 3:22-6(d) (1995)). Since 2009, Rule 3:22-6(d) has instead provided that PCR counsel "should advance all of the legitimate arguments requested by the defendant that the record will support. If defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference."
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Nonetheless, this case bears no resemblance to Rue. Rue's PCR counsel first pointed out that he "believe[d] the client's claims are legally meritless." Id. at 8. He then "systematically dismantled each contention" Rue raised. Id. at 13. He "rejected outright the availability of a renunciation defense," proved that Rue's potential witnesses had "'significant credibility problem[s],'" opined that trial counsel "'made a good strategic decision not to call them at trial,'" and concluded that Rue had "'no meritorious issues.'" Id. at 9-10 (emphasis by Court). This argument was so devastating to Rue that the prosecutor simply agreed with PCR counsel, and the PCR court's opinion denying relief "was rife with references to PCR counsel's conclusions regarding the lack of merit of Rue's contentions." Id. at 11. The Court reversed "[b]ecause Rue's counsel abandoned any notion of partisan representation by countering every one of his claims and characterizing the entire petition as meritless." Id. at 19.
Here, by contrast, PCR counsel attempted to convince the court to accept defendant's claim that plea counsel was ineffective. Faced with contrary evidence in the plea form and plea transcript, PCR counsel sought to build credibility with the court by acknowledging the adverse evidence and arguments before focusing the court on the points favoring defendant's claim.
PCR counsel began by recognizing that he faced "a difficult path" because the plea form said "no sentencing recommendation," and the plea transcript showed the prosecutor announced he was "going to go for an extended term." Counsel recognized that this "record reflects that [defendant] was going to be exposed to an extended term," and one would think defendant, "who has been though the criminal justice system a number of times," might be "well aware of what was going on." PCR counsel recognized "some might say this [PCR claim] is buyer's remorse," or "this is what you get for a[n] open plea."
However, PCR counsel immediately emphasized the importance of ensuring that a defendant is "very clear" on the terms of a plea. He argued no such clarity was given defendant, who was not "as well versed as" the attorneys and the court. PCR counsel argued to the judge that "despite what all of . . . this paperwork says, what the record says, and what you . . . know, because you sat through all of this," it was defendant's understanding that he would receive concurrent prison sentences of five years with a three-year parole disqualifier. PCR counsel argued that defendant's "expectations were not met."
PCR counsel then pointed out indicators that he argued warranted an evidentiary hearing. First, he noted that the conversations between plea counsel and defendant right before the plea were off-the-record, and that defendant asserted those conversations led him to believe "he was looking at a five with a three concurrent with a five with a three." Second, he argued that defendant's decision to plead guilty as trial started indicated that something had occurred off-the-record to make defendant "believe that he wasn't going to get an extended term." Third, he asserted that defendant had tried to withdraw his plea because defendant felt there was a misrepresentation. PCR counsel argued that, if plea counsel had not told defendant that he was going to get "a five with a three with a five with a three, [defendant] wouldn't have entered into the plea agreement." PCR counsel contended that defendant's allegations satisfied both prongs for ineffective assistance, forcing the State and the PCR court to counter his contentions.
Accordingly, defendant's PCR counsel was still "'function[ing] as an advocate for the defendant, as opposed to a friend of the court.'" State v. Barlow, 419 N.J. Super. 527, 536 (App. Div. 2011). "'[T]here are countless ways to provide effective assistance in any given case.'" State v. Arthur, 184 N.J. 307, 342 (2005). "The test is not whether defense counsel could have done better, but whether he met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). Given the contrary evidence faced by PCR counsel, defendant has failed to overcome the "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Miller, 216 N.J. 40, 57-58 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). Moreover, defendant cannot show a reasonable probability that the result of the PCR hearing would have been different had PCR counsel argued differently.
V.
Finally, defendant claims that sentencing counsel was ineffective. Sentencing counsel argued that defendant pled guilty "out of ignorance," and should receive the same sentence he previously received, and successfully advocated concurrent rather than consecutive sentences on Counts Five and Seven.
Defendant nevertheless contends that sentencing counsel was ineffective because he did not argue any mitigating factors. "[T]he failure to present mitigating evidence or argue for mitigating factors" can be ineffective assistance of counsel where "mitigation evidence was withheld from the sentencing court." State v. Hess, 207 N.J. 123, 153-54 (2011). Here, however, "[t]he record before us contains no indication of any similar withholding from the trial court of information that could bear on the court's sentencing analysis." State v. Friedman, 209 N.J. 102, 121 (2012). Defendant fails to identify any mitigating evidence or factor that sentencing counsel should have advanced.
We agree with the PCR court that, because defendant fails to "identify an argument that would have resulted in a more favorable sentence," his "contentions are purely speculative." Thus, "defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing." Marshall, supra, 148 N.J. at 158; R. 3:22-10(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION