Opinion
DOCKET NO. A-4267-11T3
08-05-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUTHER L. LEWIS, a/k/a LUTHER DAVIS, LAMAR LEWIS, LEMAR LEWIS, MARK FREEMAN, LUTHER DAVIS, "L", Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and St. John. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-09-0779. Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Luther Lewis appeals from a December 2, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant contends that he was denied effective assistance of counsel, first in connection with his guilty plea on April 5, 2010, and again when his attorney thereafter failed to file a direct appeal. Having considered defendant's arguments in light of the record and controlling law, we affirm.
I.
In September 2009, defendant was charged by Union County Indictment No. 09-09-0779 with the following offenses: second-degree theft by deception, N.J.S.A. 2C:20-4(a) (count one); three counts of third-degree forgery, N.J.S.A. 2C:21-1(a)(2) (counts two, five and six); and third-degree uttering bad checks, N.J.S.A. 2C:21-5 (count three).
On April 5, 2010, pursuant to Accusation No. 10-04-0406, defendant was charged with an additional third-degree theft by deception, N.J.S.A. 2C:20-4. On the same day, defendant waived his right to an indictment and, pursuant to a negotiated plea agreement, pled guilty to the sole count in the accusation and also count one of the indictment.
Under the terms of the plea deal, the State agreed to recommend concurrent five-year terms of imprisonment on each count, to run consecutively to a previous sentence defendant was serving at the time. Defendant also agreed to pay $49,999 in restitution — $27,000 to the victim of the indicted offenses and $22,999 to the accusation victim. The five remaining counts in the indictment and four additional unindicted charges would be dismissed.
During the April 5 appearance at which defendant entered his guilty plea, the trial judge prefaced the plea colloquy by explaining that defendant would be asked a series of questions. The judge then apprised defendant:
[I]f you don't understand the question, tell me and I'll put it in other words. If you need to speak to your attorney for any reason, tell me and I'll give you whatever time you need.At the outset of the colloquy, defendant acknowledged that he had received and reviewed the discovery materials with his attorney, that he was satisfied with the advice he had received from his attorney, and that he did not need additional time to confer with counsel.
Both defendant and counsel verified that the negotiated agreement included the payment of $27,000 and $22,999 to the respective victims as restitution. The written plea form, signed and initialed by defendant on each separate page, recited that defendant was obligated to make restitution in the aforementioned amounts to each of the victims. At the time the plea was entered, defendant specifically acknowledged his restitution obligation.
At the sentencing hearing on May 28, 2010, the judge once again set forth the terms of restitution in the plea agreement. When asked whether he wished to be heard, defense counsel verified that the $27,000 and $22,999 sums had been agreed to, but then noted, "Obviously, of course, this decision is based on the ability to pay." A short while later, defense counsel again stated:
[S]o the only issue of restitution is ability to pay, so whatever it is. Obviously, you know he is in prison right now and will be in prison, based on this particular plea, for another flat five sentence, so, as it relates to the issue of ability to pay. That's the only - - there is really no issue other than whatever the court deems necessary and proper on this.
Defendant was asked if he would like to say anything "on this matter," to which he declined. The judge then inquired into whether counsel and defendant had reviewed the adult presentence report (PSR), and also whether the defense had any corrections, additions or deletions. Both confirmed that they had reviewed the PSR and were not requesting any changes. The report indicated that defendant owned no assets but owed $300 in credit card debt and $8,000 in civil judgments. Defendant's employment history indicated that he was a laborer, and that he had been an "independent contractor" from 2004 to 2009. However, the criminal history section revealed that defendant had spent a significant portion of those years incarcerated.
The judge sentenced defendant in accordance with the terms of the plea agreement, including the agreed-upon restitution to both victims. Defendant did not file a direct appeal from that order.
On August 26, 2010, defendant filed a pro se PCR petition, and, on September 5, 2011, assigned counsel filed a supplemental brief, contending that trial counsel was ineffective by failing to request a restitution hearing at the time of sentencing or to file an appeal from the sentencing order despite being instructed to do so.
A non-evidentiary PCR hearing was held on December 2, 2011. Defendant argued that the trial judge should have convened a hearing concerning his ability to pay before including restitution in the sentence. He also maintained that trial counsel provided ineffective assistance by neglecting to file a direct appeal to challenge the ordered restitution.
The PCR judge, who was also the judge who took the plea, rendered a comprehensive oral decision denying defendant's petition. The judge noted that the PSR showed defendant had no sources of income and held debts totaling $8,300, and thus observed that the ordered restitution could only be justified based on defendant's future earning capacity.
However, the PCR judge also noted that restitution to the victims was a bargained-for condition of a negotiated plea agreement, and that defendant had entered his guilty plea freely, voluntarily and intelligently. The PCR judge determined that trial counsel's decision to forgo a formal "ability-to-pay" hearing was not the result of a less-than-complete investigation into the facts and the law. The judge continued:
Specifically, there did not exist at the time of sentencing a good faith dispute regarding [defendant]'s ability to pay. First, defendant indicated in his presentence interview that he was formerly employed in the field of construction and home improvement. Thus, there is an indication that given a fair opportunity to do so, defendant will be able to pay restitution required of him by way of the sentence imposed as a result of the negotiated plea agreement.
Accordingly, the judge concluded that counsel's performance was not constitutionally deficient:
It is clear that trial counsel was mindful of [defendant]'s ability to pay as he negotiated the plea agreement and that he
took pains to address it with both the State and the court at the time of sentencing again. In light of the foregoing, the court finds that defense counsel's decision not to [formally] request a hearing on this issue does not fall below a level of reasonable professional competence.
The judge also addressed the second prejudice prong for ineffective assistance of counsel, determining that defendant failed to meet his burden. The judge reasoned that defendant "benefitted greatly from the plea agreement negotiated for him by trial counsel" because the deal significantly reduced the length of defendant's potential incarceration under all charges.
With respect to the direct-appeal ineffective assistance claim, the judge found defendant's contentions unavailing. After again emphasizing that defendant had acknowledged that the payment of restitution was part of his negotiated plea agreement, and that the record reflected defendant entered into the plea agreement voluntarily and intelligently, the PCR judge concluded that "trial counsel's failure to file an appeal regarding this issue does not fall below a level of reasonable professional competence." The PCR judge also concluded that "there has been no showing of prejudice, that but for trial counsel's failure to file an appeal, the outcome of this matter would have been different."
Having determined that defendant did not establish a prima facie showing of ineffective assistance on either claim, the PCR judge also denied defendant's request for an evidentiary hearing.
Defendant appealed from that December 2, 2011 order, and presents the following issue for our consideration:
THE POST CONVICTION RELIEF JUDGE SHOULD HAVE ORDERED AN EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S PCR PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON COUNSEL'S FAILURE TO REQUEST A HEARING ON THE VICTIM'S ACTUAL LOSSES, AN ABILITY TO PAY HEARING AND/OR FILE A NOTICE OF APPEAL ON DEFENDANT'S BEHALF.
II.
We undertake a de novo review of the PCR court's purely legal conclusions. See 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). Where the PCR court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the court has drawn from the documentary record because credibility determinations, to which we normally defer, are not implicated. Id. at 421.
A PCR petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The PCR court must consider the petitioner's "contentions indulgently and view the facts asserted . . . in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). An evidentiary hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. See State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). Ordinarily, PCR courts "should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of [PCR]." Preciose, 129 N.J. at 462-63 (emphasis omitted).
To establish such a prima facie claim, a defendant must demonstrate the reasonable likelihood of succeeding under the well-known test for ineffective assistance of counsel, which we will not repeat at length here. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Where an ineffective assistance claim arises from a guilty plea, the defendant must prove both counsel's constitutionally-deficient performance and also a "reasonable probability that, but for counsel's errors, he would not have pleaded 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); accord State v. DiFrisco, 137 N.J. 434, 457 (1994).
Here, defendant argues that trial counsel was ineffective for failing to request, before entry of the guilty plea, a restitution hearing to determine the precise amount of the victims' losses and defendant's ability to pay those sums.
Although a court has discretion to require the payment of restitution when sentencing a defendant, its discretion is bounded by N.J.S.A. 2C:44-2. See State v. Newman, 132 N.J. 159, 164 (1993). Before ordering restitution pursuant to that statute, the sentencing court must first determine that the defendant has a present or future ability to pay restitution. N.J.S.A. 2C:44-2(b)(2); Newman, supra, 132 N.J. at 169. If there is a good faith dispute over the amount of loss or defendant's ability to pay, the court is required to conduct a restitution hearing in order to resolve those issues. N.J.S.A. 2C:44-2(c); State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). On the other hand, where there is no controversy as to the amount and ability to pay, a hearing is not required. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994).
In reviewing claims of ineffective assistance, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Here, defendant has not presented facts sufficient to overcome that strong presumption. Defendant's potential exposure in terms of imprisonment under all charged offenses was markedly higher than the concurrent five-year sentences he ultimately received pursuant to the negotiated plea agreement. Cf. State v. Rhoda, 206 N.J. Super. 584, 596 (App. Div.), certif. denied, 105 N.J. 524 (1986). As the PCR judge noted, defendant "benefitted greatly from the plea agreement negotiated for him by trial counsel."
In addition, defense counsel made it clear to the judge before sentencing that any forthcoming order of restitution would be dependent upon defendant's ability to pay. Counsel's decision not to request a hearing was reasonable because there were no factual issues to be resolved at an ability to pay evidentiary hearing. There was no dispute as to the correctness of the amount of restitution. Defendant acknowledged and agreed to the amounts as set forth in his signed plea agreement form, and at the time the plea was entered, he was afforded an opportunity to dispute the amount during plea colloquy but declined to do so.
Although the record reflects that defendant had few assets and would not be able to make payments while incarcerated, it also indicated that he had the ability to earn income in the construction business after being released from prison. See State ex rel. R.V., 280 N.J. Super. 118, 124 (App. Div. 1995)(noting that if the amount of restitution is otherwise appropriate, it "may be ordered even in the absence of present means to pay"). Thus, while defendant had no current ability to pay the full amount, there was a factual basis upon which the court could find that defendant would have the ability to pay restitution at some point in the future. Counsel, having twice pointed out to the judge that restitution is contingent on a defendant's ability to pay, relied on the sentencing court's discretion in either reducing the amount of restitution or imposing the agreed-upon amount to be paid by defendant's prospective earnings.
Accordingly, we cannot agree that defense counsel's decision to forgo a restitution hearing was "beyond the range of professionally competent assistance." See State v. McDonald, 211 N.J. 4, 29-30 (2012).
Even assuming arguendo that counsel's decision to eschew a restitution hearing constituted deficient performance, we conclude that defendant has failed to identify any prejudice resulting from that shortcoming. In order to satisfy the prejudice requirement of the Strickland-Fritz test in the context of a guilty plea, a defendant must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210; see also State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009). In other words, the allegedly deficient performance by counsel must have prejudiced the defendant's right to a fair disposition of the charges.
With regard to his ability to pay, defendant baldly asserts that he would never have to pay restitution had counsel asked for a hearing. He supports that speculative assertion merely by pointing to the fact that he would be incarcerated for a number of years while already in debt and without the ability to earn an income. However, even if a hearing had been held, defendant has not identified the factual basis upon which the court could have found that he lacked the future ability to pay restitution. The facts now raised by defendant in support of his argument were before the sentencing judge via the PSR. With no issues of fact needing resolution, a restitution hearing was unnecessary, and thus we concur with the PCR judge that defendant failed to show a reasonable probability that counsel's purported error undermined the result of the proceedings. Therefore, defendant failed to present a prima facie case of ineffective assistance on this claim.
Defendant also contends that his trial counsel was ineffective for neglecting to file an appeal from the sentencing order after being directed to do so. We recognize that a defendant may be deprived of effective assistance of counsel when an attorney fails to file a timely appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1035, 145 L. Ed. 2d 985, 995 (2000).
However, defendant has provided nothing but a conclusory statement that he "told [his] attorney that [he] wanted to file an appeal" and "signed the appeal rights form indicating [his desire to appeal]." He does not state when or how he made this request, let alone provide the "appeal rights form" or any other documentary evidence of the request. These allegations are nothing more than unsupported "bald assertions" and were insufficient to trigger further inquiry by the PCR court. Cummings, supra, 321 N.J. Super. at 170.
Moreover, defendant did not establish a prima facie case of ineffective assistance because, as already discussed, he has failed to demonstrate any prejudice resulting from counsel's alleged deficiency. Again, defendant does not contend that he would have insisted on going to trial on the charges, nor does he otherwise explain how the disposition of the criminal proceedings would have been different had counsel filed a notice of appeal with regard to the issue of restitution. On this point, defendant has failed to make a prima facie case in support of his ineffective assistance claim, and therefore was not entitled to an evidentiary hearing on PCR.
We conclude that the PCR judge's determinations were supported by the record and that the matter was correctly decided on the law.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION