Opinion
DOCKET NO. A-5172-10T2
05-07-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WYCLIFFE A. EDOO, Defendant-Appellant.
Daniel B. Kelley argued the cause for appellant (Kelley Law Offices, LLC, attorneys; Mr. Kelley, of counsel and on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and St. John.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 96-05-0003; 06-03-0880.
Daniel B. Kelley argued the cause for appellant (Kelley Law Offices, LLC, attorneys; Mr. Kelley, of counsel and on the brief).
Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief). PER CURIAM
Defendant Wycliffe A. Edoo appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
I.
We briefly summarize the relevant procedural history and the facts based on the record before us.
A Camden County Grand Jury indicted defendant, under Indictment No. 1996-05-03 with two third-degree counts of tampering with a witness, N.J.S.A. 2C:28-5a(1); two third-degree counts of criminal coercion, N.J.S.A. 2C:13-5a(2); two third-degree counts of hindering apprehension, N.J.S.A. 2C:29-3(b)(3); and two fourth-degree counts of stalking, N.J.S.A. 2C:12-10(b).
Following his arrest, defendant fled to England. Upon his return, he was apprehended and in March 2006 was charged under Indictment No. 880-03-06 with third-degree tampering with a witness, N.J.S.A. 2C:28-5a(1); third-degree criminal coercion, N.J.S.A. 2C:13-5a(2); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(3), fourth-degree stalking, N.J.S.A. 2C:12-10(b); and fourth-degree forgery, N.J.S.A. 2C:21-1a(3).
On May 29, 2009, pursuant to a negotiated plea agreement, defendant pleaded guilty to one count of criminal coercion from each indictment. N.J.S.A. 2C:13-5a(2). As part of his plea colloquy, defendant acknowledged that his plea counsel had asked him the questions set forth in his four-page plea form, circled the answers given by defendant, and that defendant signed the form. Defendant also acknowledged that his plea counsel reviewed the form with him, and explained it to him before he signed it. The trial judge questioned defendant concerning the voluntary nature of his plea and possible immigration consequences, and informed him that, "you will have a criminal record." Defendant acknowledged those consequences. On August 7, 2009, defendant was sentenced to concurrent two-year terms of probation on each count. All other charges against defendant were dismissed.
Defendant did not directly appeal, but filed a PCR petition. Defendant asserted that he was entitled to relief because of ineffectiveness of his trial counsel, specifically the advice given to him concerning the employment consequences of his conviction. Additionally, defendant argued that he should be permitted to withdraw his plea of guilty.
Defendant and trial counsel submitted certifications setting forth their respective recollections of the facts that led to defendant's guilty plea. The PCR judge, who was also the trial judge, did not conduct an evidentiary hearing. The PCR judge denied defendant's PCR requests by orders dated May 12, 2011, accompanied by a comprehensive written opinion. It is from those orders that defendant appeals.
II.
Defendant presents the following four issues for our consideration on appeal:
POINT I
THE COURT BELOW ERRED IN FINDING DEFENDANT'S PLEA SHOULD NOT BE VACATED UNDER R. 3:22-10 CONSIDERING THAT, BASED ON TRIAL COUNSEL'S OWN ADMISSIONS, THE PLEA WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT.
POINT II
IT WAS IMPROPER FOR THE COURT BELOW TO FIND PETITIONER'S CLIAMS ARE PROCEDURALLY BARRED BY FAILURE TO APPEAL WHEN DEFENDANT REPEATEDLY SOUGHT ADVICE AND ASSISTANCE FROM COUNSEL, BUT WAS CONSISTENTLY ADVISED NOTHING COULD BE DONE.
POINT III
THE COURT BELOW ERRED IN HOLDING THAT THE MISINFORMATION RECEIVED BY DEFENDANT, AND HIS SUBSEQUENT PLEA TO AN INDICTABLE CHARGE BASED SOLELY UPON THAT ADVICE, DID NOT CONSTITUTE A MANIFEST INJUSTICE PERMITTING DEFENDANT TO WITHDRAW HIS GUILTY PLEA.
POINT IV
ALTERNATIVELY, THE LOWER COURT ABUSED ITS DISCRETION BY FAILING TO HOLD AN EVIDENTIARY HEARING AND THE MATTER SHOULD BE REMANDED FOR A HEARING BEFORE A DIFFERENT JUDGE NOT INVOLVED IN THE ORIGINAL PLEA.
Certain principles guide our consideration of the issues before us on appeal. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a 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).
To justify withdrawing a guilty plea premised on ineffective assistance of counsel, defendant must satisfy a modified Strickland standard:
When a guilty plea is part of the equation, . . . a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases" and (ii) "that there is 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. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 157 N.J. 434, 457 (1994)).]
Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
Furthermore, in addressing a withdrawal of a guilty plea, our Supreme Court has set forth the following standard:
[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[State v. Slater, 198 N.J. 145, 157-58 (2009).]
These "'same factors are to be used for motions filed either before or after sentencing,' whether the motion is made pre-or post-sentencing 'will trigger different burdens of proof for the movant.'" State v. Hayes, 205 N.J. 522, 535 (2011) (quoting Slater, supra, 198 N.J. at 158). "[P]re-sentence motions to withdraw a plea are governed by the 'interest of justice' standard in Rule 3:9-3(e), while post-sentence motions are subject to the 'manifest injustice' standard in Rule 3:21-1." Slater, supra, 198 N.J. at 158.
After a Strickland analysis, the PCR judge found defendant failed to establish a prima facie case of ineffective assistance of counsel. Defendant claims he told his plea counsel that he could not have a felony conviction on his record "because that would render [him] unemployable in [the nursing] field." His understanding was that he was not pleading guilty to a felony, but rather to a misdemeanor. Defendant further contends that he did not recall his plea counsel explaining the plea form to him, but that he "merely initialed and signed where instructed since [he] believed [he] was pleading to a misdemeanor." Further, defendant represented that he lost his job "for a felony conviction." As proof of his contentions, he provided the judge with emails he sent to and received from his plea counsel. The emails support defendant's contention that his plea counsel discussed with him the issue of felony and misdemeanor convictions, and that the issue was of importance to defendant.
Plea counsel confirmed that he discussed this issue with defendant and that it was counsel's opinion that "since these are 3rd degree offenses they should be considered the equivalent of misdemeanors rather than felonies under the New Jersey scheme which has no felony/misdemeanor dichotomy."
New Jersey does not recognize the traditional distinction between "felonies" and "misdemeanors." Under the New Jersey Code of Criminal Justice, all offenses are categorized as either crimes or as disorderly or petty disorderly offenses. N.J.S.A. 2C:1-4(a), (b). Pursuant to N.J.S.A. 2C:43-1(b), crimes outside the Code that are designated as "high misdemeanors" are to be treated as third-degree crimes for sentencing purposes. Although defendant claims that plea counsel's opinion with respect to the felony/misdemeanor issue was incorrect, it does not amount to a professional lapse. Plea counsel could not give a definitive answer on the issues because New Jersey does not recognize the felony/misdemeanor dichotomy.
In addressing defendant's contention of ineffective assistance of counsel, the PCR judge stated:
In fact, with regard to Pennsylvania law, a state where petitioner has a valid nursing license, petitioner's crime would be considered a misdemeanor. Pursuant to 18 Pa. Cons. Stat. § 106, any offense punishable by five years imprisonment or less, including offenses defined by other statutes, is a misdemeanor. Therefore, plea counsel gave competent advice in the absence of clear authority and his representation cannot be categorized as deficient.
Our decision is guided by the belief that it is ineffective assistance of counsel to provide misleading, material information that results in an uninformed plea, and it is irrelevant to our determination whether employment consequences are regarded as "penal" or "collateral." However, defendant did not meet his burden of demonstrating that counsel provided material and misleading information that resulted in an uninformed plea. Defendant acknowledged that by pleading guilty he would have a criminal record. That fact, common sense dictates, may have adverse employment consequences.
We see no reason to disturb the decision of the PCR judge that defendant did not meet the burden of proving his right to relief by a preponderance of the evidence.
Finally, in considering defendant's motion to withdraw his plea, the PCR judge comprehensively evaluated the Slater factors. In his findings, the PCR judge noted that defendant did not assert a colorable claim of innocence, rather he asserted, "that he was never served with a restraining order." The PCR judge found that "[t]he facts and circumstances surrounding the restraining order are irrelevant to the charge of criminal coercion to which [defendant] pled guilty. [Defendant] did not make a colorable claim of innocence with regards to the crime of criminal coercion."
In analyzing the nature and strength of defendant's reasons for withdrawing, the PCR judge referred to defendant's reason as the purported erroneous advice that his conviction would be characterized as a misdemeanor, rather than a felony. Defendant claims he would not have pleaded guilty if he knew that the conviction would hurt his employment options. The PCR judge noted that the plea transcript demonstrated defendant's acknowledgment that "he would have a criminal record as a result of the plea." The PCR judge determined that defendant's plea counsel communicated to defendant that New Jersey does not have a felony/misdemeanor distinction. The judge stated that "the nature and strength of [defendant's] reasons for withdrawal are weak."
Examples cited by the Slater court warranting withdrawal include where:
(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea, see [State v.] Nichols, [ ] 71 N.J. [358,] 361 [1976] (finding defendant misinformed about whether he would receive concurrent sentences if convicted); (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea, see State v. Johnson, 182 N.J. 232, 241 (2005) (permitting plea withdrawal where defendant was unaware of period of extended parole ineligibility under No Early Release Act, N.J.S.A. 2C:43-7.2); State v. Kiett, 121 N.J. 483, 499 (1990) (allowing withdrawal where juvenile mistakenly believed he faced death penalty and entered guilty plea to avoid its imposition); State v. Howard, 110 N.J. 113, 118 (1988) (allowing withdrawal where defendant was not informed of parole eligibility implications of sentence to Adult Diagnostic and Treatment Center); but see State v. Heitzman, 107 N.J. 603, 604
(1987) (finding failure to warn of collateral consequence of guilty plea--forfeiture of public employment--did not justify vacating plea); (3) defendant's reasonable expectations under the plea agreement were not met, see State v. Kovack, 91 N.J. 476, 483 (1982) (finding sentence improper where plea agreement did not contemplate period of parole ineligibility); State v. Marzolf, 79 N.J. 167, 183 (1979) ("Where the accused's reasonable expectations are defeated, the plea bargain has failed one of its essential purposes, fairness, and a defendant should be permitted to withdraw the plea."); and (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense "was forgotten or missed" at the time of the plea. State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992)[.]
[Slater, supra, 198 N.J. at 158.]
The PCR judge recognized that defendants have a heavier burden in seeking to withdraw a plea entered as part of a plea agreement and that in this case "this factor weighs in favor of the State." Id. at 160-61.
Finally, the judge found that withdrawal of the plea would result in unfair prejudice to the State based on the amount of time between the original plea and defendant's petition for PCR in which he sought to withdraw the plea. See State v. Munroe, 210 N.J. 429, 443-44 (2012).
For these reasons, defendant did not satisfy the Slater test. Defendant's application to withdraw his guilty plea was therefore properly denied. We see no reason to disturb the PCR judge's decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION