Opinion
DOCKET NO. A-2812-14T3
06-03-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-01-0266. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Anthony Williams appeals from a December 16, 2014 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
Defendant was charged in an indictment with second-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2, N.J.S.A. 2C:20-4 (count one), and second-degree theft by deception, N.J.S.A. 2C:20-4, N.J.S.A. 2C:2-6 (count two).
Sixteen co-defendants were also charged in count one of the indictment, although defendant was charged alone in count two.
At a pretrial conference on December 20, 2010, defendant's assigned counsel advised the court that the State extended a plea offer which included a sentencing recommendation of a ten-year custodial term with a four-year period of parole ineligibility. Counsel also advised the court that he met with defendant for four-and-one-half hours on the previous day and reviewed with defendant the audio recordings and other information the State provided in discovery. Counsel advised the court that defendant inquired about retaining a new attorney because he and defendant were not "on the same page."
The court told defendant that he could retain new counsel, advised him there would be a final pretrial conference after the holidays, and informed him the matter would either be resolved or scheduled for trial at the final pretrial conference. Defendant stated there had been delays in his meetings with his counsel and that he had not received all of the discovery. Counsel advised the court that defendant had met with counsel's investigator and reviewed the discovery on two separate occasions, that counsel had reviewed the discovery with defendant during their four-and-one-half hour meeting, and that defendant had been provided with audio tapes the State provided. The court scheduled the final pre-trial conference for January 10, 2011.
Defendant did not retain new counsel. At the January 10, 2011 conference defendant appeared with his assigned counsel who advised the court that he had spoken to defendant about the State's plea offer, the possibility of an open-ended plea to the charges, and defendant's potential exposure to an extended term sentence. Counsel informed the court that defendant rejected the State's plea offer and wished to proceed to trial.
Defendant was eligible for imposition of an extended term sentence under N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a) based upon his prior record of convictions. --------
The Deputy Attorney General represented that defendant was extended term eligible because of a 1996 federal conviction for conspiracy to sell government property without authorization, a 2005 federal conviction for bank fraud, and a 2011 Pennsylvania conviction for fraud. The court was also advised that defendant had served at least two prior prison sentences.
The court informed defendant that if he was convicted of the second-degree crimes charged in the indictment, his sentencing exposure was up to twenty years of incarceration with a ten-year period of parole ineligibility because he was eligible for the imposition of an extended term. The court also advised defendant that ten of his codefendants had entered pleas of guilty and agreed to testify against him, and if he rejected the plea offer it would be withdrawn and the case would be scheduled for trial.
Counsel advised the court that he had spoken with defendant in his office and discussed defendant's sentencing exposure and the weight of the evidence against him. The court confirmed with defendant that he understood his sentencing exposure, the State's evidence, and that he rejected the State's plea offer. The court scheduled the case for trial.
On June 2, 2011, the court conducted a second final pretrial conference as part of a program providing defendants and the State with a last opportunity to resolve pending criminal charges. Defendant stated that he was not interested in a negotiated plea agreement and wished to proceed to trial. He expressed dissatisfaction with his counsel, stating that his attorney did not return his phone calls. Defendant also said he had not seen his attorney for four months until he met with him on June 1, 2011, and that he filed a "grievance to the [e]thics [c]ommittee" because his attorney advised him he was not required to appear for a motion hearing.
The court noted that the motion, which requested dismissal of the indictment, had been adjourned from the date defendant did not appear and rescheduled for disposition the following week. The judge advised defendant that he had reviewed the motion papers and that the motion lacked merit. The court also confirmed that defendant had been advised at the December 20, 2010 conference that he could retain a new attorney and defendant had not done so. The court again advised defendant that he could retain a new attorney, but that the matter would proceed to trial on June 27, 2011.
Defendant's counsel explained to the court that he met with defendant on a number of occasions, defendant reviewed the discovery with counsel and separately with counsel's investigator, and that counsel received a revised plea offer of a ten-year custodial term without any period of parole ineligibility. Defendant informed counsel that he rejected the revised offer.
The court questioned defendant and confirmed he understood his sentencing exposure, the State's modified plea offer, and that the court had reviewed his motion to dismiss the indictment and determined it was meritless. The court reminded defendant that it was his last opportunity to accept the State's plea offer and asked defendant if he wanted to accept the State's offer. Defendant responded in the affirmative.
Defendant then met with his counsel, reviewed and completed the plea forms, and pled guilty to second-degree theft by deception under count two. The State agreed to recommend that the court dismiss count one, sentence defendant to a ten-year custodial term, and impose appropriate fines, penalties, and restitution. Defendant agreed that the State could void the plea agreement if defendant filed an appeal.
In response to questioning by the court at the plea hearing, defendant testified he was not forced or threatened to enter into the plea agreement, he understood his sentencing exposure if he proceeded to trial, and he wished to plead guilty.
Defendant provided a factual basis for the entry of his guilty plea, admitting that he was the "ringleader" of a scheme during which he obtained credit cards on accounts without the account holders' knowledge and directed his co-defendants to use the cards and provide him with a portion of the money illegally withdrawn. The amount of the thefts exceeded $75,000. The judge accepted defendant's guilty plea, and defendant's motion to dismiss the indictment was withdrawn with prejudice.
Defendant was subsequently sentenced to a ten-year custodial term and ordered to pay fines, penalties, and restitution. Defendant filed a direct appeal but it was later withdrawn.
On May 19, 2014, defendant filed a pro se PCR petition, which contained the singular sworn allegation that he "was forced to take [a] plea" because the judge refused to substitute new counsel for the attorney who defendant alleged purposely misinformed him that he was not required to appear at a hearing on his motion to dismiss the indictment. Counsel was assigned to represent defendant on the PCR petition and filed a supplemental brief on defendant's behalf. PCR counsel argued that plea counsel was ineffective by coercing defendant to enter into the plea agreement and advising defendant not to appear at the hearing on his motion to dismiss the indictment. It was also asserted that plea counsel had a conflict of interest because defendant alleged he filed a grievance with the ethics committee regarding plea counsel.
The court heard argument on December 16, 2014, rendered an oral decision, and entered an order denying the petition without an evidentiary hearing. The court found that defendant did "not come close to showing that . . . his counsel was defective" and failed to demonstrate "a reasonable probability that but for counsel's errors, the result of the proceeding would have been different." This appeal followed.
On appeal, defendant's counsel makes the following argument:
POINT I:
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING DUE TO A CONFLICT OF INTEREST BETWEEN HIM AND HIS PLEA COUNSEL CAUSING HIS PLEA TO BE INVOLUNTARY.
In defendant's pro se supplemental brief, he argues:
POINT II:
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW AND HIS RIGHT TO A FAIR TRIAL SINCE THE COURT ERRONEOUSLY FAILED TO SUBSTITUTE COUNSEL WHOM HAD A CONFLICT OF INTEREST.
POINT III:
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN THE COURT ARBITRARILY REFUSED A CONTINUANCE TO ALLOW DEFENDANT SUFFICIENT TIME TO RETAIN COUNSEL.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421. We apply that standard here.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his defense. The right to counsel includes "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was deficient. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Ibid. There must be 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. In the context of a PCR petition challenging a guilty plea based on the ineffective assistance of counsel, the second prong is established when the defendant demonstrates a "reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial," State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)), and that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52. A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
In defendant's pro se brief and in his counsel's brief on appeal, he contends that his plea was coerced because his "plea counsel was not acting in his best interests." He alleges that plea counsel did not return his phone calls, did not give him discovery, failed to communicate with him, deliberately told him not to appear at a hearing on a motion to dismiss the indictment, and that he filed an ethics complaint against plea counsel. Defendant contends that the PCR court erred in rejecting his claim that his trial counsel was ineffective due to a conflict of interest between defendant and counsel arising from counsel's failure to act in defendant's best interest when he told defendant not to appear at the hearing on defendant's motion to dismiss the indictment.
"Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Based upon our review of the record, we are convinced the PCR correctly concluded that defendant failed to demonstrate any prejudice here.
The record is devoid of any evidence that but for counsel's alleged failures, defendant would have rejected the plea offer and "insisted on going to trial." Nuñez-Valdéz, supra, 200 N.J. at 139. Defendant did not present evidence that it "would have been rational under the circumstances" to reject the plea offer. Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297. Indeed, defendant did not address the issue of prejudice under the second prong of the Strickland standard in his PCR petition or his submissions to the PCR court, and does not argue here that if his attorney had returned his calls, provided him with discovery, and had informed him to appear for the hearing on his motion to dismiss the indictment that he would have rejected the plea offer and proceeded to trial.
We have held that "bald assertions" are insufficient to sustain a defendant's burden of establishing a prima facie case of ineffective assistance under the Strickland standard. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity," State v. Jones, 219 N.J. 298, 312 (2014), "facts sufficient to demonstrate counsel's alleged substandard performance." Ibid. (quoting State v. Porter, 216 N.J. 343, 355 (2013)). Here, defendant failed to make any assertion that but for his counsel's alleged errors he would have rejected the plea agreement and proceeded to trial. The PCR court therefore correctly denied the petition.
We reject defendant's contention that the court erred by failing to find that his alleged filing of a grievance with an ethics committee required the granting of his PCR petition. Defendant did not establish by affidavit or certification that he filed a grievance with an ethics committee against his plea counsel. Defendant's PCR petition, which represents the sole sworn statement submitted in support of his claim, does not make any reference to the purported grievance. The record therefore supports the PCR court's finding that it was presented with "nothing definitive" about the alleged grievance.
Even assuming, however, defendant filed a grievance against his plea counsel, it would not permit or require a reversal of the PCR court's order. "Under our State Constitution, '[e]ffective counsel' is an attorney who represents his client with undivided loyalty, 'unimpaired' by conflicting interests." State v. Cottle, 194 N.J. 449, 466-67 (2008) (alteration in original) (quoting State v. Norman, 151 N.J. 5, 23 (1997)).
In analyzing whether a conflict of interest has deprived a defendant of the effective assistance of counsel, our Court has "adhered to a two-tiered approach." Cottle, supra, 194 N.J. at 467. A defendant may demonstrate that counsel's conflict of interest amounted to a per se conflict in which "prejudice is presumed" and requires "the reversal of a conviction." Ibid.
Our Court has recognized a per se conflict of interest amounting to ineffectiveness of counsel in limited circumstances, i.e., when an attorney is "contemporaneously under indictment in the same county as his client, and being prosecuted by the same prosecutor's office," id. at 473, and when "a private attorney, or any lawyer associated with that attorney, is involved in simultaneous dual representations of codefendants." Norman, supra, 151 N.J. at 24-25; accord State v. Bellucci, 81 N.J. 531 (1980).
Absent a per se conflict of interest, to establish that a conflict of interest deprived a defendant of his or her right to the effective assistance of counsel, "the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel." Cottle, supra, 194 N.J. at 467-68 (quoting Norman, supra, 151 N.J. at 25).
Defendant did not present evidence supporting a finding that his plea counsel had a per se conflict of interest. Id. at 467; Norman, supra, 151 N.J. at 24-25. He claimed only that plea counsel had a conflict because he filed a grievance with the ethics committee complaining that counsel misinformed him about the requirement that he be present for a hearing on the motion to dismiss the indictment. Although the filing of a grievance with the ethics committee created a potential conflict of interest, defendant failed to present any evidence establishing that the conflict presented "a great likelihood of prejudice." Id. at 25. We agree with the court that defendant failed to establish that his PCR counsel had a conflict sufficient to deprive defendant of the effective assistance of counsel.
We also reject defendant's argument contained in his pro se brief that the trial court erred in denying defendant "a continuance to allow defendant sufficient time to retain counsel." The argument is barred because it could have reasonably been raised on a direct appeal, Rule 3:22-4, and does not fall within any of the exceptions in the Rule. See Nash, supra, 212 N.J. at 546 ("A petitioner is generally barred from presenting a claim on PCR that could have been raised . . . on direct appeal" unless the claim is within the exceptions under Rule 3:22-4). Moreover, the argument is contradicted by the record.
On two separate occasions, the court advised defendant that he could retain new counsel. In each instance, defendant failed to do so. In addition, a court cannot require that the Public Defender's Office "assign new counsel to a defendant who [is] dissatisfied with the attorney assigned to represent him, absent a showing of 'substantial cause.'" State v. Coon, 314 N.J. Super. 426, 438 (App. Div.) (quoting State v. Lowery, 49 N.J. 476, 489-90 (1967) and State v. Wiggins, 158 N.J. Super. 27, 34 (App. Div. 1978)), certif. denied, 157 N.J. 543 (1998). "The constitutional right to the assistance of counsel provides a fair opportunity to secure and consult counsel of a defendant's own choice, but there is no absolute right to a particular counsel." Ibid. (citing State v. Reddy, 137 N.J. Super. 32, 35 (App. Div. 1975)). We are convinced defendant failed to demonstrate "substantial cause" to be entitled to new assigned counsel, and the court properly advised defendant he could secure new private counsel at his own expense. Ibid.
We are satisfied the court properly denied defendant's PCR petition without an evidentiary hearing. 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 (1997) (alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The PCR court correctly found that defendant did not meet this burden.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION