Opinion
DOCKET NO. A-2957-13T1
11-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID MOON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz, O'Connor and Whipple. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-02-0675. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant David Moon appeals from a December 9, 2015 Law Division order denying his petition for post-conviction relief (PCR) following a remand from this court ordering an evidentiary hearing. After reviewing the record in light of the applicable legal principles, we affirm.
I
In 2005, a jury found defendant guilty of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1). The court sentenced defendant to an aggregate term of forty-four years of imprisonment, with a thirty-four-year period of parole ineligibility.
A full recitation of the evidence adduced at trial can be found in State v. Moon, 396 N.J. Super. 109, 118 (App. Div. 2007). We summarize only the evidence relevant to the issues on appeal.
It is not disputed defendant shot a man (the victim) in the head and killed him. Defendant's position at trial was he shot the victim in self-defense or, in the alternative, in the heat of passion resulting from a reasonable provocation.
Eyewitness Willie Carter testified he, defendant, the victim, and another individual were gathered in a lot where the four were drinking and socializing. Defendant and the victim got into a quarrel and stood "face to face." The victim fired a gun three to four times at defendant, but no bullet struck him. The victim then put his gun away. Defendant appeared to be in shock but was not angry, and spoke to the victim for ten or fifteen minutes after the shooting. Defendant left the scene but, before leaving, said he would return.
In a recorded statement he gave to the police, defendant claimed after the victim shot at him, he and the victim agreed things were "straight" between them and they shook hands. The victim even handed defendant his gun and said, "shoot me." Defendant handed the gun back to the victim, who laughed and offered defendant something to eat. Defendant ate some food but afterward felt "freaked out" by what had occurred and left to take a walk.
Defendant returned "to make sure that everything was okay" between him and the victim. Defendant walked up to and asked the victim if they were "cool," and gave the victim a hug and kiss. The victim responded by threatening defendant, warning if defendant ever told anyone what had happened, he would kill him. Upon hearing the victim's threat, defendant "just snapped, not really snapped, I just took out the, the gun I had that was in my pocket . . . I . . . pulled the trigger. The body dropped."
Carter testified he went to his mother's home and reported what happened. She called the police and defendant was arrested and subsequently provided a taped confession, which was admitted into evidence. Defendant did not testify at trial. Finding he committed purposeful or knowing murder, the jury clearly rejected defendant's claim he acted in self-defense or in the heat of passion resulting from a reasonable provocation.
On direct appeal we reversed and dismissed the charge of endangering an injured victim, but affirmed the other convictions. State v. Moon, supra, 396 N.J. Super. at 118. Further, in an unpublished portion of this opinion, we remanded for clarification of the sentence imposed for unlawful possession of a firearm, and directed the judgment of conviction be amended to eliminate all sanctions imposed for the conviction of possession of a firearm with an unlawful purpose. State v. Moon, No. A-5402-04, (App. Div. October 9, 2007) (slip op. at 18). The Supreme Court denied defendant's petition for certification. State v. Moon, 193 N.J. 586 (2008).
Thereafter, defendant filed and the court denied, without holding an evidentiary hearing, his petition for PCR. Defendant appealed contending, among other things, counsel was ineffective because he advised defendant to reject a plea offer he serve a twelve-year term of imprisonment, subject to the No Early Release Act (N.E.R.A.), N.J.S.A. 2C:43-7.2, in exchange for his guilty plea. Specifically, defendant alleged counsel informed him he had "reviewed [my] case and that his was a case of passion provocation manslaughter which was punishable by ten (10) years and not felony murder. Based on that advice [I] rejected the State's offer."
Defendant also asserted trial counsel failed to (1) object to the admission of his taped confession; (2) object to the use of certain language in the jury charge; and (3) consult with him when he was in the jail as opposed to the holding cell. Defendant also alleged appellate counsel failed to argue on direct appeal the charge was prejudicial. None of these contentions is in issue in this appeal.
In light of the fact defendant faced a thirty-year to life sentence if found guilty of first-degree murder, see N.J.S.A. 2C:11-3(b)(1), we found there was a question of fact what counsel had advised defendant when this plea offer was made and whether such advice constituted ineffective assistance of counsel. Accordingly, we remanded this matter for an evidentiary hearing. We found defendant's remaining argument points devoid of merit. The Supreme Court denied defendant's petition for certification. State v. Moon, 224 N.J. 125 (2016).
The PCR court held an evidentiary hearing, during which trial counsel and defendant testified. Counsel noted he could not recall whether the State made an offer defendant serve only a twelve-year term of imprisonment in exchange for a guilty plea. It was his recollection the plea offer the State made was that defendant serve a twenty-year term of imprisonment. He acknowledged the pretrial memorandum reflected the State had made an offer defendant serve a nineteen-year term, subject to N.E.R.A., and surmised the State amended the offer from twenty to nineteen years on the day of the pretrial conference.
Counsel acknowledged defendant had "good defenses." He and defendant discussed taking the position at trial defendant acted in self-defense or, in the alternative, shot the victim in the heat of passion as a result of a reasonable provocation. However, counsel maintained he never said what the probable outcome would be if defendant went to trial.
Counsel maintained he merely advised defendant of the sentence he likely would receive if a jury found him guilty of the offenses with which he was charged or if it found him guilty of passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(1)-(2), a second-degree crime, see N.J.S.A. 2C:11-4(c). Counsel also advised defendant of the sentence a judge might impose if defendant pled guilty and the State recommended a sentence. Significantly, counsel also testified he has never advised a client to accept or reject a plea offer.
Defendant claimed the State did not make an offer he serve a twenty-year term but did offer he serve a nineteen-year term in exchange for a guilty plea. He noted counsel did not recommend whether or not he should accept the offer. "He just said this is what they're offering." Then, just before trial, the State made an offer he serve a twelve-year term of imprisonment, subject to N.E.R.A., in exchange for a guilty plea.
Counsel advised defendant that if he were found to have acted in self-defense, he would be acquitted, but if the jury found he acted under "passion provocation [I] would be looking at 12 years regardless. . . Basically the same [sentence]." When questioned if he received any "indication" from counsel whether he should accept the offer, defendant stated:
[Counsel] had me believe that we had a good shot at going to trial, that I should be acquitted, at least if not acquitted, found passion provocation because of how — the nature of the case. . . . So how he laid it out to me is like look, you have a good chance. . . . Because he said by going to — this is how he laid it out to me. He said if we don't get him on self-defense, we got
him on passion provocation. This clearly [was] a passion provocation case.
Defendant acknowledged he signed the pretrial memorandum, which stated he could be sentenced to a life sentence with a sixty-seven-year parole ineligibility period if convicted of all charges. When pressed if counsel represented it was "absolutely certain" he would win at trial, defendant replied, "Nothing in life is certain but death. I, I understand that. I'd be a fool. He — I [would have] looked [at] him like he was crazy if he'd . . . said that to me." Defendant also conceded counsel never told him to reject the offer that he plead guilty in exchange for receiving a twelve-year term of imprisonment.
The PCR court found counsel was credible, while defendant was not. Among other things, the court noted counsel has never advised a client to reject a plea, and never told defendant he would "do just as well with a jury trial as with a plea." Counsel did advise defendant of his sentencing exposure if the jury found him guilty of the charges with which he was charged or passion/provocation manslaughter.
In addition to noting various frailties in defendant's testimony, the court pointed out defendant admitted counsel never informed him it was a certainty he would prevail at trial and never advised him to reject the subject plea offer, "contradicting defendant's main allegation" counsel was ineffective for failing to have done so.
II
On appeal, defendant presents the following issue for our consideration:
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN THAT TRIAL COUNSEL EFFECTIVELY MISADVISED HIM TO REJECT THE STATE'S PLEA OFFER.
In his brief, defendant argues counsel's "unbridled optimism" about the outcome of the trial effectively amounted to a recommendation he reject the offer he serve a twelve-year term of imprisonment in exchange for pleading guilty. Defendant is not asserting counsel was ineffective because he failed to advise him to accept the subject plea offer. Defendant is contending counsel was ineffective because his optimism he would prevail at trial caused defendant to reject the subject plea offer. We conclude defendant's argument is without merit.
The State contends defendant failed to prove this offer was made. We disagree. Defendant asserted under oath this offer was made after the pretrial conference. Counsel could not recall whether or not this particular offer was made at all.
Although the PCR court did find defendant was not a credible witness, the court rejected defendant's claim the subject offer was made on the ground defendant failed to produce "other credible evidence" of the existence of this offer. We understand the court to mean because defendant failed to provide corroborating evidence of the offer, the court was unable to find the offer was made. However, defendant was not obliged to introduce corroborating evidence in order to establish the offer was made.
We defer to a PCR court's factual findings after an evidentiary hearing. State v. Nash, 212 N.J. 518, 540 (2013). We uphold a PCR court's findings if they are supported by sufficient credible evidence in the record, mindful of the court's opportunity to make credibility determinations based on first-hand observations of witnesses' demeanor. Ibid. On the other hand, we do not defer to the PCR court's interpretation of the law, which we review de novo. Id. at 540-41.
To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, as adopted in State v. Fritz. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). That test requires a defendant to show "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
Second, a defendant must prove he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
These principles have been extended to when a defense attorney counsels a client during plea negotiations. 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). A defendant claiming counsel was ineffective during plea negotiations must establish with "reasonable probability" the result would have been different had he received proper advice from that attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07. We have said "that an attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance." State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006) (quoting State v. Taccetta, 351 N.J. Super. 196, 200, (App. Div.), certif. denied, 174 N.J. 544 (2002)).
Further, when a defendant's claim is that counsel's ineffective assistance "led not to an offer's acceptance but to its rejection," he or she
must show that but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
[Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1385, 182 L. Ed. 2d at 407.]
Here, in defendant's initial appeal to us on his petition for PCR, he contended counsel was ineffective for advising him to reject the plea offer. Following the evidentiary hearing and the PCR court's findings, he shifted his position. He now asserts counsel's assessment he had a good chance of being convicted of merely passion/provocation manslaughter, if not acquitted, induced him to reject the subject plea offer; amounting, in effect, to counsel advising him to reject the plea offer.
As defendant ultimately conceded, counsel never guaranteed it was a certainty he would be acquitted or, if not acquitted, convicted of passion/provocation manslaughter. As even defendant admitted, had counsel made such a representation, defendant would have "looked [at] him like he was crazy." Moreover, the PCR court found counsel credible when he asserted he did not proffer predictions on the outcome of a trial, and merely advised defendant what his sentencing exposure would be if convicted by a jury or pled guilty to the subject offenses.
The competent evidence is counsel did not explicitly forecast the outcome of the trial and it is uncontroverted he never advised against accepting the subject plea offer. Even if counsel implicitly exuded optimism about the outcome of the trial, defendant conceded he was aware counsel did not know with certainty how a jury would decide his case. Thus, defendant knew there was a risk he would be convicted of murder, for which he would have to serve a multi-year term of imprisonment.
Because defendant's petition is void of the requisite proof counsel provided ineffective assistance, we find no basis to vacate the December 9, 2015 order.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION