Opinion
DOCKET NO. A-5328-11T4
09-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIE MULDROW, Defendant-Appellant.
Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, on the brief). Meghan M. O'Neill, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Ms. O'Neill, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall and Nugent. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 05-02-0297 and 05-10-1504. Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, on the brief). Meghan M. O'Neill, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Ms. O'Neill, on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
Serving an aggregate thirty-year prison term following his conviction by a jury of drug offenses and an aggravated assault and his guilty plea to a drug offense charged in a separate indictment, appellant Willie Muldrow appeals the denial of his petition for post-conviction relief (PCR). He contends his trial counsel was ineffective for failing to convey a final pre-trial plea offer with an aggregate custodial term of twenty years for all offenses, which he would have readily accepted. He also contends the court wrongly denied his request for an evidentiary hearing on his claims that counsel ineffectively represented him during his jury trial, and that appellate counsel was ineffective for failing to raise certain issues on appeal.
Having considered appellant's arguments in light of the record and controlling law, we reject them. Because the PCR court's factual and credibility determinations concerning whether trial counsel conveyed the plea offer are supported by sufficient credible evidence in the record, we will not disturb them. Appellant was not entitled to an evidentiary hearing on his remaining claims because he did not establish a prima facie case that his trial and appellate counsel were ineffective. Accordingly, we affirm.
I.
The following procedural history is undisputed. In February 2005, a grand jury charged appellant in an eight-count indictment (the February Indictment) with six CDS offenses, aggravated assault, and resisting arrest. The charges arose out of an incident that occurred in October 2004 when narcotics officers conducting surveillance saw appellant sell cocaine. Later, when officers attempted to arrest him, he punched one in the face.
Appellant rejected a pre-indictment and a post-indictment plea offer. Three months after the February Indictment, in May 2005, appellant was arrested for new CDS offenses. Those charges were filed after police executed a search warrant and seized cocaine from appellant's home. Although appellant had yet to be indicted on the new offenses as of June 30, the prosecutor sent his attorney a letter on that date in which he proposed to resolve all outstanding charges. The June 30, 2005 letter enclosed discovery for the unindicted charges and provided in pertinent part:
In addition[,] I am tendering the following plea offer: Case #04-10-3937 [the February Indictment], Guilty to distribution of cocaine 3° and aggravated assault 3°, state will seek 5 years NJSP concurrent on each; and consecutive to case #05-06-2081 [the unindicted charges] which requires a guilty plea to possession of cocaine with intent to distribute 2°, sentencing as per 'Brimage' 15 years NJSP with 54 months of parole ineligibility. Pursuant to this offer, the net sentence contemplated by the state is 20 years with 54 months of parole ineligibility.
Appellant claims he would have accepted the plea contained in the July 30 letter had his trial counsel conveyed it. The plea was never accepted, and appellant has maintained that his attorney never told him about it before his trial on the February Indictment.
Appellant's trial on the February Indictment began on July 26, 2005, and ended on July 28, 2005, when the jury found him guilty on all counts. After two appeals, appellant was sentenced to an aggregate prison term of fifteen years with seven-and-one-half years of parole ineligibility for his convictions of second-degree distribution of a CDS, cocaine, within five hundred feet of a public park, N.J.S.A. 2C:35-7.1(a); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); and third-degree possession of a CDS, cocaine. The remaining counts were merged.
On direct appeal, we affirmed appellant's convictions but vacated his sentence in part and remanded for resentencing. State v. Muldrow, No. A-3865-05, (App. Div. Jan. 19, 2007), (slip op. at 15-17), certif. denied, 190 N.J. 392 (2007). Following remand and the imposition of a new sentence, appellant appealed. We heard the appeal on a sentencing calendar pursuant to Rule 2:9-11 and issued a remand order for the trial court to amend the judgment of conviction to make the sentence on the third-degree CDS offense concurrent to the other sentences. State v. Muldrow, No. A-2435-07 (App. Div. Aug. 18, 2009).
Following appellant's sentence on those charges, a grand jury charged him in a three-count indictment with additional CDS offenses stemming from the May 2005 search of his home. Appellant accepted a plea offer from the State, pled guilty to a single count of second-degree possession with intent to distribute a CDS, cocaine, and was sentenced to a prison term of fifteen years with four-and-one-half years of parole ineligibility, his sentence to be served consecutively to that imposed on his conviction of the charges in the February Indictment. Consequently, he is now serving an aggregate term of thirty years with twelve years of parole ineligibility, a significantly longer sentence than the State had offered in the June 30 letter.
In May 2010, appellant filed his PCR petition, which he thereafter supplemented and amended. In his petition, he alleged that trial counsel had failed to inform him of the State's June 20, 2005 plea offer, and that for various reasons, which he enumerated in his petition, counsel had not represented him effectively at trial. The court granted appellant's request for an evidentiary hearing with respect to the plea offer, but denied appellant's remaining claims without a hearing. Following an evidentiary hearing, the court denied the petition in its entirety. This appeal followed.
II.
Appellant raises the following points for our consideration:
POINT I: MR. MULDROW MET HIS BURDEN OF PROOF TO ESTABLISH HIS RIGHT TO POST-CONVICTION RELIEF BECAUSE HE WAS DEPRIVED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO CONVEY A FAVORABLE PLEA OFFER TO MR. MULDROW THAT HE WOULD HAVE ACCEPTED.
POINT II: THE TRIAL COURT ERRED IN DENYING MR. MULDROW'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, BASED UPON COUNSEL'S TRIAL ERRORS, WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING.
(A) Trial counsel was ineffective by presenting a defense strategy, without consulting Mr. Muldrow, that portrayed him as a "known drug dealer" who was dangerous and by eliciting testimony from the arresting officers that they possessed knowledge that Mr. Muldrow was in fact a "known drug dealer." These errors were exacerbated due to counsel's failure to request limiting jury instructions for the testimony.
(B) Defense counsel was ineffective for eliciting testimony from officer Valmon concerning the arrest warrant for Mr. Muldrow and the procedure employed to obtain the warrant.
(C) Mr. Muldrow received ineffective assistance of counsel when counsel told the jury that Mr. Muldrow has a right to testify, himself, but counsel will not allow him to do so. This remark deprived Mr. Muldrow of his Fifth Amendment right to remain silent and his Fourteenth Amendment right to due process and a fair trial.
(D) Defense counsel erred in failing to request that the jury be charged with limiting instructions concerning the arrest warrant testimony as well as testimony that Mr. Muldrow was a "known drug dealer."
(E) Defense counsel's cumulative errors establish Mr. Muldrow's claim of ineffective assistance of counsel.
POINT III: MR. MULDROW WAS DEPRIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR COUNSEL'S FAILURE TO RAISE (A) THE LIMITING JURY INSTRUCTION ISSUES AND (B) THE ARREST WARRANT ISSUE DURING MR. MULDROW'S DIRECT APPEAL.
To prove a claim that counsel was ineffective, a defendant must establish that "counsel's performance was deficient[,]" that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[;]" and, "there is 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, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). "A petitioner must establish the right to [post-conviction] relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992).
Defendants are not necessarily entitled to an evidentiary hearing on such claims:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot
be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.
[R. 3:22-10(b).]
A.
In Point I, appellant alleges his attorney did not inform him of the State's plea offer. Appellant's trial counsel, appellant's wife, and appellant testified at the PCR hearing. Trial counsel testified first.
As of October 2004, the attorney had been practicing law for approximately twenty-six years. Criminal law was a substantial part of his practice. He had negotiated hundreds of pleas, had been a public defender in a municipality, had chaired a District Ethics Committee, and had taught at Seton Hall Law School. He was uniquely aware of his duty to convey plea agreements to his clients.
Although he once had a file on appellant's case, he had given it to a public defender and had not reviewed it in seven or eight months. He was trial counsel for appellant, but did not remember discussing the June 30 plea offer with appellant. When questioned about the June 30, 2005 letter, counsel testified that he "certainly would have tried to relay it to [his] client."
Appellant's PCR counsel had apparently obtained a copy of trial counsel's file, because PCR counsel produced exhibits from the file during the hearing.
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The attorney's staff had misaddressed the letter. The envelope was produced as an exhibit. The envelope included a street number on Martin Luther King Blvd. in Lakewood. Appellant's mother lived at a home with that street number, but on Martin Luther King Drive, not Martin Luther King Blvd. The envelope was returned to the attorney's office. Trial counsel acknowledged that he did not do anything with the envelope and its contents until after appellant's trial. The attorney then gave the envelope, the letter, and the enclosures referred to in the letter to appellant's wife.
Counsel testified explicitly that he had no recollection of discussing the terms of the June 30 letter and plea offer with appellant before appellant's trial began. Nor did counsel have any recollection of meeting with appellant after counsel received the letter but before the trial began.
On cross-examination, trial counsel testified that it was his practice, as to plea offers, that he would routinely tell a client "what the deal is, and they accept it or reject it." He explained that in municipal court matters, he would meet with his clients in court, but for serious matters like appellant's, "they would come to my office."
Counsel further explained that the conversations would be different depending upon the client's experience with the system. "Somebody going to prison for the first time, that could be a lengthy conversation. Somebody who knows the drill, he just looks at it and says, they can kiss my butt, I don't want that offer. So the conversations really vary."
In response to the court's questions, counsel explained that in the normal course of events, he would have discussed the plea with appellant:
And I would probably follow it up with a letter. I don't see it here - - this is unusual. I don't recall the plea cut-off hearing for this plea. I don't recall the judge going on the record with this plea prior to trial. And so there is this void in my memory, Your Honor, about any conversation concerning this plea.
In further response to the court's questions, counsel said that he likely would have discussed the State's final plea offer with appellant.
Your Honor, in a normal circumstance, I would always have that conversation. I have no recollection in this circumstance, Your Honor. I don't remember that conversation. I would like to say yes, it happened, because I think that conversation happens in most defense cases. On the other hand here, and especially with [appellant] being somebody who had been familiar with the system, it's not like he's a newbie and I got to sit there and explain to him what prison is all about and look what's gonna happen. He knew the drill better than I did, Your Honor. So even if that conversation existed, it probably would have been a short one. And I don't recall it existing at all, Your Honor.
Trial Counsel did recall appellant saying he wanted to go to trial.
Appellant's wife testified that she and appellant moved into a house they rented on Ronald Road in Lakewood in April 2005. They lived there in June 2005, and that is where they lived on July 20, 2005, when they met appellant's trial counsel in his office. During the meeting, trial counsel never mentioned the June 30 plea offer.
Appellant proceeded to trial and was convicted. At his sentencing, when he told the Judge that his attorney had never provided him with the State's discovery, trial counsel responded that he had mailed it to appellant's house. As appellant's wife was leaving the courthouse after the sentencing, trial counsel gave her a package, which she later opened. The package contained the State's discovery and the June 30 plea offer. Trial counsel had never conveyed the offer to her or to appellant in her presence.
Appellant testified that following his 2004 arrest for CDS offenses and aggravated assault, he hired trial counsel. At that time, he and his wife lived in the house on Ronald Road in Lakewood. Appellant's name was on the lease and he received his mail there.
The Ocean County Narcotics Strike Force executed a warrant there in May 2005. Following appellant's arrest, he waived his Miranda rights and gave tape recorded and written statements to the police admitting the drugs were his and that his wife and mother had no clue they were in the house. He always intended to plead guilty to the charges stemming from that incident. For that reason, he would readily have agreed to a plea that gave him only five more years on the February Indictment.
Although appellant and his wife met with trial counsel in July 2005, trial counsel did not discuss the State's plea offer contained in the June 30, 2005 letter. Appellant was unaware of the June 30 letter until his wife told him about it on the phone after he was sentenced. He never actually saw the letter until a pool attorney was assigned to assist him with an appeal.
On cross-examination, appellant acknowledged that he had actually attended two meetings with his attorney in July. During the first meeting, his attorney discussed a plea offer. According to appellant, at the July 12 meeting counsel conveyed a plea offer. That offer, however, would have resulted in an aggregate custodial term of thirty-five years. Appellant maintained that counsel had never conveyed the June 30 plea offer.
Following the hearing, the court rendered an oral decision on January 20, 2012, in which it denied appellant's petition. The court was both distressed by the extent of trial counsel's inability to recall events and upset by counsel appearing at the hearing without his file. In the court's view, despite being charged with ineffective assistance, trial counsel had made no effort to find out what actually happened. Nevertheless, the court noted that if trial counsel "acted per his normal practice and custom and consistent with his known ethical obligations, the plea contained within the June 30th letter would have been discussed with the appellant." The court further noticed that appellant had the burden of proving by a preponderance of the evidence that trial counsel was ineffective. The court concluded: "Here, it's my finding that he has not met his burden."
The court found that the meetings appellant attended at trial counsel's office in July, particularly the earlier meeting, was consistent with counsel's practice of calling his clients into his office to discuss plea offers on significant cases. That practice was complied with during the July 12th meeting "and perhaps when that July 20th meeting took place." The court found "that the evidence in this case points to knowledge of an offer and rejection of an offer for reasons that I have just discussed." The court further determined that appellant's claims "that no offer was conveyed . . . lack[ed] credibility, and they're not supported at all by the evidence that was presented here today."
Appellant contends the court's decision that counsel informed him of the June 30 plea offer "is inconsistent with the competent, relevant and reasonably credible evidence because all of the testimony and documentary evidence presented at the hearing established that the plea offer was never conveyed by defense counsel to [appellant]."
The court found, however, that appellant had not carried its burden of proof by satisfying the two-pronged Strickland test by a preponderance of the credible evidence. The court specifically found that appellant's testimony lacked credibility. When we review the denial of a PCR petition following a hearing, we "defer[] to a PCR court's factual findings based on its review of live witness testimony . . . [and] will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. State v. Nash, 212 N.J. at 518, 540 (2013). That is because "[a]n appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand." Ibid.
The proofs the parties developed at the evidentiary hearing presented the court with a close call as to whether trial counsel had conveyed the June 30 plea offer to appellant. The witnesses were testifying to events that had transpired more than five years before the hearing. On the one hand, the court heard from an experienced trial attorney who was well aware of his obligation to convey all plea offers to his clients. The attorney's customary practice when he received plea offers in serious cases was to meet with his client and discuss the pleas. The evidence supported the reasonable inference that counsel received the State's June 30 plea offer within a few days of it being mailed, and counsel was therefore aware of it when he met with appellant on July 12 and again on July 20. Although defense counsel's effort to mail the June 30 letter to his client had been unsuccessful, the court could have reasonably inferred that, consistent with his practice, counsel would have discussed the plea offer when he met with appellant on July 12 and July 20.
On the other hand, counsel did not recall discussing the June 30 plea offer with appellant, and both appellant and his wife testified that counsel had not discussed the offer with them. But when appellant initially testified, he did not mention the July 12 meeting. That was brought out on cross-examination. And, as appellant admitted both in his certification in support of his PCR petition and at the evidentiary hearing, he and his attorney did discuss a plea during a July 12 meeting, even though appellant insists it was not the June 30 plea offer. The court had to consider appellant's testimony in the context of what impact a significant lapse of time and intervening events may have had on appellant's recall, as well as his attorney's customary practice.
Reconciling the testimony and documentary evidence required the court to make credibility determinations based on its evaluation of the witnesses. Having done so, the court was not required to find that the State had established that counsel conveyed the plea to appellant. As the court pointed out, appellant had the burden of proof. Whether appellant carried the burden of proving that counsel did not convey the plea bargain was a decision that could have been made only after a careful evaluation of the credible evidence, which in turn depended upon the court's assessment of the credibility of all witnesses. Based on those factors, the court concluded that appellant had not sustained his burden of proof. Although a different fact finder might have reached a different conclusion, the evidence amply supports the PCR court's determination. For that reason, under our standard of review, we affirm the court's decision denying appellant's PCR petition.
B.
In Point II, appellant contends that the court erred by not granting an evidentiary hearing on his remaining claims. He argues that his trial counsel committed four errors that, separately and cumulatively, establish a prima facie case that he was ineffective. Specifically, appellant alleges that counsel made the following errors: First, in his opening statement, counsel told the jury that, notwithstanding appellant's right to testify, counsel would not allow him to do so; second, without appellant's knowledge, counsel presented a trial strategy that portrayed appellant as a known drug dealer, a fact known to the police; third, counsel elicited testimony from a police officer concerning an arrest warrant for appellant; fourth, counsel failed to request a limiting jury instruction concerning the jury's use of the testimony about appellant being a known drug dealer and about the arrest warrant.
In an oral opinion, the PCR court determined that appellant had failed to establish a prima facie case that his counsel was ineffective. The court determined that any prejudice that may have resulted from counsel's improper statement to the jury about appellant testifying was cured by the trial court's instruction; and in any event, neither that alleged error nor the others would have affected the outcome of the trial. We agree.
The evidence of appellant's guilt was overwhelming. We summarized that evidence in our opinion on direct appeal:
On October 1, 2004, officers Valmon and McGilloway of the Ocean County Narcotics Strike Force parked their unmarked police car in a lot in Lakewood. Shortly after 8:30 p.m., a woman driving a blue Chevrolet pulled up and stopped. Minutes later, defendant arrived in his Jeep, pulled up behind the Chevrolet, handed the woman an object and took money from her. After that exchange, defendant and the woman drove their cars away. The officers alerted another officer who was driving a marked police car, and he stopped the Chevrolet. The driver admitted she had just purchased cocaine, surrendered a glassine bag and later identified defendant as the seller. Valmon obtained a warrant for defendant's arrest.
On October 14, 2004, Valmon and McGilloway saw defendant. They called for back-up but before assistance arrived, defendant started to walk quickly away. The officers, each wearing a badge hung from the neck on a chain, approached defendant, told him to stop and told him that he was under arrest. When defendant did not stop, Valmon grabbed him by his shoulder and told him he had a warrant for his arrest. Defendant punched the left side of Valmon's face and ran. He was apprehended after a foot chase by Officer Van de Zilver of the Lakewood Police Department, who heard the undercover officers' radio transmission describing the path of defendant's flight and intercepted him. Van de Zilver was in uniform and driving a marked police car. Defendant stopped on Van de Zilver's command and was arrested. He had one glassine bag of cocaine, a digital scale and $622 in cash. All three officers and the woman who purchased cocaine on October 1, 2004, testified at defendant's trial.
[State v. Muldrow, No. A-3865-05 (App. Div. January 19, 2007).]
In his opening statement, counsel told the jury, "[Appellant] has the right to testify, himself, which he wants to do and which I probably won't let him do." Appellant claims his attorney was ineffective for making that statement. Although the statement is inexplicable, as we noted in our previous opinion, "the judge eliminated any prejudice that appellant might have sustained in a charge to the jury at the close of the case." Muldrow, supra, No. A-3865 (slip op. at 5 n.1).
Nor do we find that trial counsel's strategy caused reversible error. Counsel's trial strategy was to undermine the credibility of the police and to portray appellant as a person they targeted because he was a known drug dealer. He implemented this strategy, in part, by disclosing that appellant was a known drug dealer, by eliciting testimony from a police officer that they knew appellant was a known drug dealer, and by examining one officer about an arrest warrant for appellant. Appellant now claims that his counsel never consulted with him about employing such a high-risk strategy.
The Supreme Court has explained that, "[a]s a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Here, even if defense counsel's strategy was a miscalculation, it was not of such magnitude as to thwart appellant's fundamental guarantee of a fair trial. When appellant sold cocaine to the buyer, he was under the surveillance of experienced police officers. In addition to the officers, the buyer testified at his trial. Under those circumstances, we cannot say that counsel was ineffective for engaging in a high-risk strategy. In view of the State's overwhelming evidence it is understandable why an experienced defense attorney would undertake such a high-risk strategy. There was little to lose and perhaps no apparent alternative.
But even if counsel's strategy was less than professionally competent, and even if, as appellant claims, counsel did not consult him about the strategy, we do not find the error to be "so serious as to undermine the court's confidence in the jury's verdict or the result reached." Castagna, supra, 187 U.S. at 315. It is questionable whether any defense strategy could have created a reasonable doubt in the juror's minds in view of the strength of the State's case.
C.
Appellant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(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