State v. Ross
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Transcript of State v. Ross
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NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISION
DOCKET NO. A-2347-09T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMANUEL ROSS,
Defendant-Appellant.
________________________________
Submitted: December 13, 2010 Decided:
Before Judges A.A. Rodrguez and C.L.Miniman.
On appeal from Superior Court of New Jersey,Law Division, Mercer County, Indictment No.01-06-0734.
Yvonne Smith Segars, Public Defender,attorney for appellant (Gilbert G. Miller,Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer CountyProsecutor, attorney for respondent (DorothyHersh, Assistant Prosecutor, of counsel andon the brief).
PER CURIAM
Defendant Emanuel Ross appeals from the denial of his
application for post-conviction relief (PCR). Because defendant
was entitled to an evidentiary hearing on his application, we
reverse and remand for such a hearing.
February 7, 2011
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On July 9, 2003, defendant pled guilty to one count of
first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b, in
exchange for which the State agreed to dismiss three assault
charges and three weapons charges and recommend a sentence of
fifteen years subject to the parole disqualifier of the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, and five subsequent
years of parole supervision. Defendant was to receive jail
credit for time served from April 17, 2001, to the time of
sentencing.
At his plea allocution, defendant testified that he hit the
victim with a gun several times on January 27, 2001. The
codefendant then tied up the victim and gave the victim a cell
phone to call a few people to ask them to bring money to pay
defendant the money the victim owed him. None of the people the
victim called ever arrived, and after three or four hours,
defendant and his codefendant released the victim. During the
course of the plea allocution, the judge asked defendant, "Are
you satisfied with the advi[c]e you received from [defense
counsel]?" Defendant answered, "Yes." The judge accepted the
guilty plea and scheduled sentencing for the future.
At the time of his sentencing on November 21, 2003,
defendant stated that he had been offered a deal of nine years.
The nine-year agreement, . . . my family isnot here to validate this, but at one time,
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I sent my family to [defense counsel's]office and asked her to see if she could getme seven. If not seven, I'll take nine.The response was, we don't know who'stestifying right now. It's still early. We
can always get the nine back, but it'sscheduled for trial. That --in three years,. . . the deal never changed. It was alwaysnine. Then the day that I find out that mycodefendant is testifying, . . . I'm underthe assumption that I have to live with thenine.
After some discussion about the appearance of his family
members at sentencing, defendant continued:
[F]rom the first prosecutor I had, he toldme if I copped out, the deal would be nineyears, no more than ten years. That's whatJose [Ortega] said, the first prosecutor.He never changed the deal in three yearsthat this case has been going on for threeyears. My lawyer told me that we can alwaysget the nine back.
Defendant's counsel explained that the nine-year term was
to be consecutive to the five-year sentence defendant was
already serving, but the fifteen-year term was to run
concurrently. Then the prosecutor stated that Mr. Ortega was no
longer in the prosecutor's office, and the file did not indicate
that any consecutive plea offer was ever extended.
Defendant then remarked that his "whole intention was not
to go to trial when everybody who knew anything about the case
knew that I was guilty. My whole thing was to get the best deal
that I could get. And at the last minute he turned it into a
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15." He pointed out that even if he had the nine years
consecutively, his actual time would be less than fifteen years
concurrently because of the amount of time he had served on the
prior sentence. Counsel reminded the court that defendant was
entitled to credit for time served from April 17, 2001, to the
date of sentencing. The judge then imposed sentence in
accordance with the plea agreement. Defense counsel calculated
the jail credits as at least 826 days. In the end, the judge
calculated 983 days as the appropriate jail credit.
When the judge entered the judgment of conviction on
January 15, 2004, he gave defendant credit for only ten days of
time spent in custody from February 6 to 15, 2001, and gave him
890 days of gap-time credit from June 15, 2001, to November 21,
2003. This was apparently an amended judgment of conviction.1
Defendant appealed his sentence, and the appeal came before
us for oral argument on August 23, 2006. By reclassifying jail
credit as gap time, the judgment did not take any time off the
period of parole disqualification. Counsel suggested remanding
the matter for reduction in the overall term to compensate for
the loss of reduction in the parole disqualification. Defense
counsel also pointed out that no hearing had been conducted by
1 The judgment of conviction entered immediately after sentencingis not in defendant's appendix.
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the judge when he amended the judgment of conviction at the
request of the Department of Corrections, as required by Glover
v. New Jersey State Parole Board, 271 N.J. Super. 420, 424 (App.
Div. 1994).2 The State agreed that the matter should be remanded
because the plea agreement clearly stated that defendant was to
get jail credit from April 17, 2001. We entered an order on
August 31, 2006, affirming the sentence but remanding the matter
for the limited purpose of determining why defendant did not
receive the jail credits specified in the plea agreement.
After our remand, the trial judge entered an amended
judgment of conviction on February 2, 2007, in which he gave
defendant credit for time spent in custody totaling 958 days
from February 6 to 15, 2001, and April 17, 2001, to November 20,
2003. There was no gap-time credit in the amended judgment of
conviction.
Defendant filed his PCR application on or about December 6,
2007. He alleged ineffective assistance of counsel, claiming
that his case warranted a presumption of prejudice because of
2 In Glover, supra, 271 N.J. Super. at 424, the court found "thata fair accommodation of all legitimate interests, consistent
with due process and applicable standing principles, requiresthe making of a formal motion to the trial judge forresentencing based on an asserted illegality in the sentenceimposed by the judgment of conviction." Additionally, "themotion should properly be made by one of the parties to thecriminal action."
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"the egregious shortcoming in professional performance of
counsel." Further, "[d]efendant's attorney performed below
[the] level of reasonable competence, and as a result, counsel's
unprofessional errors produced results that negatively
[a]ffected [the] end result." Counsel was assigned by order
dated April 9, 2008, and thereafter assigned counsel amended
defendant's verified petition for PCR. Prior to the amended
petition, defendant's sister and mother prepared letters dated
June 18, 2008, which they subsequently executed in front of
notaries public.
Defendant's sister related a meeting that took place at
defense counsel's office that was attended by the sister, the
mother, and defendant's girlfriend. They informed defense
counsel that defendant wished to plead guilty to kidnapping and
accept the prosecutor's offer of a nine-year term consecutive to
the sentence he was already serving. They advised counsel that
defendant wanted to accept the deal because he was afraid the
plea offer could increase if he did not accept it in a timely
fashion.
Defendant's sister further related that defense counsel
implied that defendant should wait a little longer because the
prosecutor was having trouble with the witnesses, she might get
a better deal, and defendant should not worry about the original
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plea offer increasing. Defense counsel assured the individuals
present that the plea offer would be on the table until the
beginning of trial, and defendant could accept the offer at that
time, if he wished to do so.
After the meeting, defendant's sister explained defense
counsel's strategy to defendant, and he decided to wait until
the beginning of trial to weigh his options. Defendant's sister
then related that defense counsel was incorrect because, when
defendant sought to plead guilty at the time of trial, the
prosecutor informed him that the original plea offer was no
longer available and that the only plea available at that time
was fifteen years. She asserted that her brother accepted the
plea offer, but "he was very disappointed in his lawyer's bad
judgment." She expressed her own opinion that counsel was
ineffective.
In the letter from defendant's mother, she asserted that
"[m]any times my son would call me and have me relay messages to
his lawyer because he could never get in contact with her.
[Defense counsel] would not accept his phone calls nor visit
with him to discuss strategy." She also wrote that, although
defendant asked for copies of the discovery, his lawyer never
provided discovery to him.
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Defendant's mother then discussed a status conference she
attended in the summer of 2002. At that status conference,
Ortega offered her son a plea agreement of nine years with
eighty-five percent to be served consecutively to a five-year
sentence with a three-year mandatory minimum that defendant was
already serving at the time. Defendant told Ortega that he
needed time to think about it. It was after that conference
that she, her daughter, and defendant's girlfriend went to visit
defendant to discuss the plea offer and to determine whether it
was in his best interest to accept the plea deal. After that
discussion, defendant instructed his mother to inform his lawyer
that he wished to accept the deal.
Not much later, she, her daughter, and defendant's
girlfriend went to visit with defense counsel. She described
that conference substantially as her daughter had described it.
Defendant's trial was set to begin about ten months later.
Defendant expressed that he wanted to accept the nine-year plea
deal, but the prosecutor informed him that it was no longer
available and had been increased to fifteen years. Defendant's
mother asserted that defendant felt that counsel's mistaken
advice had resulted in him receiving a longer sentence then he
would have received had he not listened to her. She concluded:
I attended [defendant's] sentencing andwitnessed my son explain how dissatisfied he
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was with his lawyer[] to the sentencingjudge . . . . [Defense counsel] neverexplained why she gave [defendant] such badadvice; she only said that the new sentence
was a little longer than the original one.
In defendant's amended September 5, 2008, verified petition
for PCR, he explained that the first plea offer was for a total
of nine years and that he would be ineligible for parole for
seven years and six months. He expressed that the sentence was
to be served consecutively to the sentence he was then serving
of five years with a three year mandatory period of parole
ineligibility. As a result, his aggregate sentence would have
been fourteen years with a ten-year, six-month mandatory period
of parole ineligibility. He averred that his counsel assured
him that the State's plea offer would not increase and that it
would remain open through trial. As a result, he proceeded to
trial.
In his certification, he made reference to the letters
provided by his sister and mother and averred that his defense
attorney "failed to provide [defendant] with relevant discovery,
in order for him to make a fully informed decision as to whether
a guilty plea would be in his best interests. Counsel also did
not accept or return [defendant's] phone calls, nor visit
[defendant] while incarcerated to discuss his concerns and trial
strategy."
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Defendant further related that during jury selection, he
decided to take the State's offer of a nine-year term, but the
State rescinded the original offer and was only willing to agree
to a fifteen-year term. Defendant reluctantly agreed to that
plea bargain. He averred that the consequence of his counsel's
incorrect advice is that his minimum term in prison was
increased by two years and three months, whereas his maximum
term increased only by one year. Defendant alleged that he was
denied the effective assistance of trial counsel as described
above and sought to have the guilty plea and sentence entered in
the matter set aside and the case set down for an evidentiary
hearing on the issues raised.
The matter came before the PCR judge on June 5, 2009. The
judge denied the application primarily because he had an order
in the court file dated December 10, 2001, placing the matter on
the trial calendar. That order stated that defendant had not
accepted an offer by the State to recommend a fifteen-year term
subject to the eighty-five percent parole disqualifier of NERA
in exchange for a guilty plea to kidnapping and third-degree
possession of weapons for an unlawful purpose. That order
indicated that defendant was present in court on that date.3
3 The order of December 10, 2001, is not in the record on appeal,nor is there a transcript of the proceedings from that day.
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The judge found that the evidence before him was no more
than "a mere allegation of ineffective assistance of counsel."
He determined that the plea offer changed from nine consecutive
years to fifteen concurrent years on December 10, 2001.4 The
judge further noted that defendant was not claiming he was not
guilty of the crime, but was only saying that he wanted the
initial plea offer that was made early in the case.5 The PCR
judge also found that in order to prove the first prong of
Strickland,6
defendant must show that there is a reasonable
probability that "but for counsel's errors . . . he would not
have pled guilty, and would have insisted on going to trial."
The judge observed that
whether or not [defendant] claims hiscounsel told him she thought she could getsomething lower than [fifteen], I have no
evidence of that. And I have not evenenough evidence to . . . warrant anyevidentiary hearing. Because I would havethat in every case where somebody had achange of heart and where they said, myattorney told me to ignore what the judgesays; ignore the order; ignore what's on the
4 Defendant did not plead guilty until 2003, and the December 10,2001, order was entered only six months after the indictment.5 Defendant and his family all certified that the plea offer ofnine consecutive years was on the table in the summer of 2002,
which was six months after the December 10, 2001, order.Furthermore, defendant certified that he understood the offer ofnine consecutive years was still on the table when he went totrial in 2003 and decided to plead guilty.6 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984).
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record; and I can get you that deal back atthe beginning of the case when theprosecutor didn't put any work into thecase.
Thus, the judge concluded that defendant had not met the
threshold showing required under Strickland and denied the
application.
We review the legal conclusions of a PCR judge de novo.
State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-
Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v.
Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope
of review applies to mixed questions of law and fact. Id. at
420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir.
1999)). Where no evidentiary hearing has been held, we "may
exercise de novo review over the factual inferences drawn from
the documentary record by the [PCR judge]." Id. at 421 (citing
Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert.
denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)).
Thus, it is within our authority "to conduct a de novo review of
both the factual findings and legal conclusions of the PCR
court." Ibid. Where no credibility determinations have been
made, "we invoke our original jurisdiction in the review of
th[e] matter." Ibid. Such a review is appropriate here as
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there was no evidentiary hearing and no credibility
determinations were made.
The right to counsel is guaranteed by both the Federal and
State Constitutions. See U.S. Const. amends. VI, XIV; N.J.
Const. art. I, 10. In New Jersey, this guarantee requires not
just the presence of an attorney, but the effective assistance
of counsel. State v. Jack, 144 N.J. 240, 248 (1996). "[A]
criminal defendant is entitled to the assistance of reasonably
competent counsel, and . . . if counsel's performance has been
so deficient as to create a reasonable probability that these
deficiencies materially contributed to defendant's conviction,
the constitutional right will have been violated." State v.
Fritz, 105 N.J. 42, 58 (1987).
To establish a prima facie claim of ineffective assistance
of counsel, the defendant must meet the standard promulgated by
the United States Supreme Court in Strickland, supra, 466 U.S.
at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted in
New Jersey under Fritz, supra, 105 N.J. at 57-58. Whether the
defendant's constitutional right to counsel has been abridged is
"measured by applying a 'simple, two-part test.'" State v.
O'Neal, 190 N.J. 601, 629 (2007) (quoting Fritz, supra, 105 N.J.
at 52).
First, the defendant must show thatcounsel's performance was deficient. This
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requires showing that counsel made errors soserious that counsel was not functioning asthe "counsel" guaranteed the defendant bythe Sixth Amendment. Second, the defendantmust show that the deficient performance
prejudiced the defense. This requiresshowing that counsel's errors were soserious as to deprive the defendant of afair trial, a trial whose result isreliable.
[Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed. 2d at 693.]
To meet the first prong of the Strickland/Fritz test, a
convicted defendant must identify acts or omissions by the trial
counsel that were not "the result of reasonable professional
judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at
2066, 80 L. Ed. 2d at 695; see also State v. Petrozelli, 351
N.J. Super. 14, 22 (App. Div. 2002). The defendant must show
that "counsel's representation fell below an objective standard
of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S.
Ct. at 2064, 80 L. Ed. 2d at 693. A court analyzing a
defendant's argument under this first prong "must give great
deference to counsel's performance and must strongly presume
that the attorney's conduct constituted reasonable professional
assistance." Petrozelli, supra, 351 N.J. Super. at 21-22
(citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694). The court should not review the
attorney's performance with the benefit of hindsight, but rather
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should "'evaluat[e] the conduct from counsel's perspective at
the time.'" Id. at 22 (quoting Strickland, supra, 466 U.S. at
689, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694). This prong
requires the court to determine whether counsel's acts or
omissions, in light of the existing circumstances, were squarely
outside the ambit of professionally competent assistance. Ibid.
Consequently, informed strategic choices "are virtually
unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S.
Ct. at 2066, 80 L. Ed. 2d at 695. Even strategic choices made
after limited investigation are afforded great deference and are
assessed for reasonableness. Petrozelli, supra, 351 N.J. Super.
at 22.
If the court finds that counsel's errors were significant
enough to meet the first prong of Strickland/Fritz, the
defendant must then demonstrate that the error was "prejudicial
to the defense." Strickland, supra, 466 U.S. at 692, 104 S. Ct.
at 2067, 80 L. Ed. 2d at 696. "The defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The burden of proof
rests "squarely on the defendant." State v. Paige, 256 N.J.
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Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992).
The reviewing court "'should presume . . . that the judge or
jury acted according to the law.'" Petrozelli, supra, 351 N.J.
Super. at 22 (quoting Strickland, supra, 466 U.S. at 694, 104 S.
Ct. at 2068, 80 L. Ed. 2d at 698). Thus, relief should only be
granted where a defendant demonstrates that the counsel's error
is "so serious as to undermine the court's confidence in the
jury's verdict or result reached." State v. Chew, 179 N.J. 186,
204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S.
Ct. at 2068, 80 L. Ed. 2d at 698).
The Strickland test does apply to challenges to guilty
pleas based on the alleged ineffective assistance of counsel.
Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L.
Ed. 2d 203, 210 (1985) ("We hold, therefore, that the two-part
Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel."). In such a
case, the first prong of Strickland requires an evaluation of
whether the attorney failed to provide advice that "'was within
the range of competence demanded of attorneys in criminal
cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208
(citation omitted). The second prong examines whether there is
a "reasonable probability" that "counsel's constitutionally
ineffective performance affected the outcome of the plea
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process. In other words, . . . the defendant must show that
there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted
on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d
at 210 (footnote omitted).
Here, assuming the truth of defendant's assertions and
those of his family, defense counsel was ineffective in failing
to visit defendant in prison to discuss strategy, declining to
accept his telephone calls, refusing his repeated requests for
discovery, and placing a communication barrier between counsel
and defendant, which precluded defendant from learning that the
State was about to withdraw its nine-year plea offer, that the
offer had been withdrawn, and that the withdrawal was
irrevocable. Certainly defendant suffered prejudice as he lost
the benefit of the nine-year consecutive term. Of course, we
cannot say as a matter of law that defense counsel was
ineffective or that defendant was prejudiced as a result. This
is so because the PCR judge failed to conduct an evidentiary
hearing in the face of undisputed evidence from defendant and
his family. Clearly, the order of December 10, 2001, did not
impeach the certification of defendant and the letters from his
family with respect to the offer that was on the table in the
summer of 2002.
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The standard for an evidentiary hearing in PCR proceedings
is contained in State v. Preciose, 129 N.J. 451 (1992). A PCR
judge must view the facts of the case in a light most favorable
to defendant to determine if a prima facie claim has been
established. Id. at 462-63. Here the facts alleged by
defendant "lie outside the trial record and . . . the attorney's
testimony [was] required." Id. at 462.
We are cognizant of State v. Slater, 198 N.J. 145 (2009).
However, this PCR application is not a direct motion to withdraw
a guilty plea, but a claim that defendant was deprived of his
constitutional right to effective assistance of counsel. In
such a case, the PCR judge must determine whether defendant's
constitutional right was compromised and, if so, remedy the harm
by restoring defendant to the place he occupied before the
deprivation of his rights. This remedy is similar to an order
for a new trial when we determine based on the record on appeal
that trial counsel was ineffective. Defendant and his new
counsel may then seek to negotiate a new plea or proceed to
trial. Thus, an evidentiary hearing was required to resolve the
conflict between the December 10, 2001, order and defendant's
version of the facts.
Accordingly, the order denying PCR is reversed and
defendant's petition is remanded to the PCR judge for an
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evidentiary hearing so that the judge may hear testimony from
defendant and his family, as well as from defense counsel and
Prosecutor Ortega, and decide the facts. Only then will the PCR
judge be able to determine whether defendant has established by
a preponderance of the evidence that he is entitled to a remedy
for the alleged deprivation of his constitutional right to
effective assistance of counsel.
Reversed and remanded for proceedings consistent with this
opinion.