Opinion
DOCKET NO. A-3153-12T4
07-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTWAN SIMMONS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-10-3359.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Antwan Simmons appeals from the December 7, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On October 11, 2007, a Camden County Grand Jury issued a thirty-eight-count indictment, charging defendant with four counts of first-degree robbery, N.J.S.A. 2C:15-1; one count of first-degree carjacking, N.J.S.A. 2C:15-2a(2); four counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; two counts of second-degree burglary, N.J.S.A. 2C:18-2; nine counts of third-degree burglary, N.J.S.A. 2C:18-2; eight counts of third-degree theft of property; N.J.S.A. 2C:20-3a; four counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; five counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and one count of fourth-degree theft of property, N.J.S.A. 2C:20-3.
On April 14, 2008, defendant pled guilty to two counts of first-degree robbery and one count of third-degree theft of property. In return for his plea, the State agreed to recommend an aggregate sentence of fifteen years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The sentence would run concurrently with a sentence defendant was already serving for unrelated offenses. The remaining thirty-five counts of the indictment would be dismissed. Defendant agreed "to make restitution on all counts of the indictment, even those counts that get dismissed" and the prosecutor stated that restitution "will, of course, be subject to ability to pay, as well."
At the plea hearing, defendant gave a factual basis supporting his plea of guilty to each of the three offenses. He stated he had discussed the plea with his attorney, was pleading guilty voluntarily and of his own free will, and was satisfied with his attorney's "legal advice and services." Defendant told the judge he understood he would be required to pay restitution on all thirty-eight counts of the indictment. Sentencing was scheduled for June 20, 2008.
Prior to imposing sentence on that date, the judge asked defendant, "would you like to say anything?" Defendant replied, "I don't want this." In response, the judge stated, "I'm sure you don't but that's what you plea bargained to. Anything else?" Defendant replied, "No." The judge then sentenced defendant in accordance with his plea agreement. Although the prosecutor sought restitution of $4806 for four victims, the Judgment of Conviction (JOC) states the judge ordered restitution in the amount of only $1150 to three victims. Defendant did not file a direct appeal of his conviction and sentence.
On October 11, 2011, defendant filed a petition for PCR, alleging "ineffective assistance of counsel." In his attorney's supplemental brief, defendant argued his plea counsel was ineffective by failing to: (1) "challenge the restitution amount or request a hearing to determine [defendant's] ability to pay;" (2) "seek to withdraw defendant's guilty plea;" (3) request a Miranda hearing; (4) file "a Wade motion to challenge the out of court identification of the defendant;" and (5) "file a severance motion."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
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After hearing oral argument and considering the parties' written submissions, the trial judge denied defendant's petition for PCR. In a thoughtful oral opinion, the judge found that defendant never raised any objection to the amount of restitution imposed, even though the subject was thoroughly discussed at the plea hearing and again at sentencing.
The judge also rejected defendant's argument that his plea counsel should have made a motion to withdraw the guilty plea after defendant stated, "I don't want this" in response to the sentencing judge's inquiry as to whether he had anything to say. The judge found that plea counsel negotiated a favorable agreement for defendant under which "[h]e got a multitude of these very serious charges dropped." Absent this plea, the judge noted defendant was facing thirty-eight charges, including multiple first- and second-degree offenses, and "[t]here would have been a number of consecutive terms if there were convictions at sentenc[ing]." The judge also observed that defendant: (1) did not assert he was innocent of the charges; (2) gave a detailed factual basis for his guilty plea on each offense; and (3) made no claim "that he didn't know what he was doing, that he was not knowledgeable, that he was under the influence, that he was sick, that he was ill, that he had a lack of capacity, nothing's put forward in that regard."
The judge also rejected defendant's argument that his attorney's failure to file a Miranda, Wade, or severance motion constituted ineffective assistance of counsel. Defendant failed to explain the possible basis for any of these motions. The judge stated the record demonstrated that a detective advised defendant of his Miranda rights and defendant signed the Miranda form indicating he understood his rights and wished to make a statement. Defendant did not explain what challenge he would have raised to the procedures used by the detective to prepare the photo arrays that were shown to victims or why a Wade hearing was warranted. Finally, the judge found there was no reason for a severance motion to have been filed prior to the plea, stating "[h]ad [defendant] gone to trial, the issue of severance may have arisen, but it had not yet at that time. So, I find that that does not warrant any consideration as being ineffective." This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE PCR COURT DID NOT ADEQUATELY CONSIDER THE STATE V. SLATER, 198 N.J. 145 (2009), FACTORS WHEN IT DENIED POST-CONVICTION RELIEF, AND TRIAL DEFENSE COUNSEL WAS INEFFECTIVE BY NOT REQUESTING THE COURT TO CONDUCT A SLATER ANALYSIS.
POINT II
THE TRIAL COURT SHOULD HAVE HELD A RESTITUTION HEARING, AND TRIAL DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING THE TRIAL COURT TO HOLD A RESTITUTION HEARING.
POINT III
THIS COURT SHOULD CONSIDER ALL OTHER POINTS OF CONTENTION WHICH WERE RAISED BY [DEFENDANT] IN HIS PETITION FOR [PCR] OR BY COUNSEL IN HIS BRIEF AND AT THE PCR HEARING.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012).
There is a strong presumption that 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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.
After considering defendant's contentions in light of the record and these applicable legal principles, we discern no basis for disturbing the judge's decision to deny defendant's petition for PCR. Defendant argues his plea counsel should have made a motion to withdraw his plea at sentencing, after defendant said, "I don't want this" when the judge asked if he had anything to say. We disagree. Defendant's vague comment could certainly not be construed as a motion to withdraw his plea. When the judge asked defendant if he wanted to make any other remarks concerning his sentence, defendant said he did not. Defendant did not tell the judge he wanted to withdraw his plea and there is nothing in the record to indicate that he ever asked his attorney to file such a motion.
Moreover, defendant's plea agreement was very advantageous to him. His attorney negotiated a plea under which thirty-five of the charges against him would be dismissed and defendant's maximum sentence would not exceed fifteen years, subject to NERA, even though he faced the possibility of a much longer sentence if he was not successful at trial. In addition, his attorney ensured that the sentence would run concurrently, rather than consecutively, to the sentence defendant was already serving.
Under these circumstances, defendant's counsel was not ineffective for failing to make a motion to withdraw defendant's plea. Therefore, neither the sentencing judge nor the PCR judge were required to conduct a hearing to determine whether defendant's plea should be withdrawn under State v. Slater, 198 N.J. 145, 157-58 (2009).
Defendant next argues his plea counsel should have asked for an ability to pay hearing regarding the $1150 restitution obligation set forth in the JOC. Again, we disagree. Defendant never asserted he would be unable to pay the $1150, even though the subject of restitution was thoroughly discussed at the time of his plea and again at sentencing. The restitution amount is also over $3000 less than the parties contemplated when the topic was originally discussed. Therefore, we concur with the judge's determination that defendant's counsel was not ineffective for failing to request a restitution hearing on a matter on which there was no dispute between the parties.
With regard to defendant's claims that his attorney was ineffective because he did not file several motions, defendant never explains why those motions should have been filed or whether they would have been successful. "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. We are persuaded, substantially for the reasons set forth by the judge in his oral decision, that the "bald assertions" made by defendant here plainly lacked merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION