STATE OF NEW JERSEY v. LATEEF COOK

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. LATEEF D. COOK, Defendant–Appellant.

DOCKET NO. A–4276–11T4

Decided: April 15, 2014

Before Judges Messano and Hayden. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Defendant Lateef Cook appeals from the October 21, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing.   We affirm.

In December 2005, a Union County grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11–3(a)(1), (2);  second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a);  and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5(b).  The indictment arose from a March 8, 2005 incident in which defendant, who was seventeen years old at the time, shot an individual in the head, causing his death.   The juvenile court waived jurisdiction and transferred the case to Superior Court for defendant to be tried as an adult.1

On December 5, 2006, defendant pled guilty to an amended charge of aggravated manslaughter, N.J.S.A. 2C:11–4(a).   As part of the plea agreement, the State agreed to recommend a twenty-year sentence with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2.

On January 19, 2007, defendant sought to withdraw his plea and proceed to trial.   Defendant alleged he was not advised that upon his release he would be subject to a five-year parole period.   The trial judge denied defendant's motion because the mandatory parole period was explicitly explained in the plea forms, which defendant had signed and acknowledged under oath that he understood.   The judge then sentenced defendant in accordance with the plea agreement.   The judge found aggravating factors three, the risk of re-offense, and nine, the need to deter, applied.  N.J.S.A. 2C:44–1(a)(3), (9).   The judge found no mitigating factors.

Defendant's direct appeal related solely to his sentence, which we affirmed on February 5, 2009, as not manifestly excessive, unduly prejudicial, or an abuse of discretion.   The Supreme Court denied certification on May 21, 2009.   State v. Cook, 199 N.J. 518 (2009).

On June 23, 2010, defendant filed a pro se PCR petition.   Thereafter, his appointed counsel filed a brief supporting the PCR petition setting forth the following arguments:

POINT I:  PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, U.S. CONST.   AMEND.  VI, XIV;  N.J. CONST.   ART. I, PARA. 10.

POINT II:  PETITIONER WAS NOT PROVIDED WITH AN ADEQUATE EXPLANATION OF THE CONSEQUENCES OF THE GUILTY PLEA, RENDERING THE GUILTY PLEA UNKNOWING AND INVOLUNTARY AND FUNDAMENTALLY UNFAIR.

POINT III:  PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT THE TRIAL WHEN DEFENSE COUNSEL FAILED TO FILE A MOTION FOR RECONSIDERATION OF THE EXCESSIVE SENTENCE.

POINT IV:  THE SENTENCE IMPOSED ON THE DEFENDANT WAS MANIFESTLY EXCESSIVE.

POINT V:  PETITIONER IS ENTITLED TO A POST–CONVICTION HEARING.

On May 3, 2011, defense counsel submitted an additional point, as follows:

PETITIONER'S DUE PROCESS RIGHT TO A WAIVER HEARING WAS DENIED.

On October 21, 2011, the PCR judge, who had also presided over defendant's plea and sentence, heard oral argument on defendant's PCR application and denied it.   The judge found defendant's argument that his plea was not knowing and voluntary unpersuasive based on defendant's plea colloquy in which he acknowledged that he understood the plea forms and all of the consequences of his plea.   Noting that defendant's sentence had already been affirmed, the judge also pointed out that defendant failed to offer a factual basis for any allegedly applicable mitigating factors that were not raised at sentencing.   The judge concluded that defendant failed to “show how counsel's actions fell below an objective standard of reasonableness or that the proceeding would have come to a different conclusion if there were no alleged professional errors.”   This appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I:  DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.

A. Counsel was Ineffective for Failing to Argue Mitigation at Sentencing.

POINT II:  DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA BECAUSE THE NATURE AND STRENGTH OF HIS CLAIM OUTWEIGH THE STATE'S INTEREST IN PRESERVING THE PLEA.

POINT III:  DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN HE FAILED TO RECEIVE A WAIVER HEARING.

POINT IV:  REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF.

We begin with a review of well-established legal principles that guide our analysis.   PCR constitutes “New Jersey's analogue to the federal writ of habeas corpus.”  State v. Preciose, 129 N.J. 451, 459 (1992).  “Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.”  Id. at 460.

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime.   U.S. Const. amend.   VI;  N.J. Const. art.   I, ¶ 10.   This right to assistance of counsel “encompasses the right to effective counsel.”  State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).   The test requires a showing of deficient performance by counsel and “ ‘that the deficient performance prejudiced the defense.’ ”   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).

This standard also applies in the context of guilty pleas, where attorney competence is required and the prejudice prong “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.”  Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S.Ct. 366, 370, 88 L. Ed.2d 203, 210 (1985);  see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996).

A petitioner must establish the right to relief by a preponderance of the evidence.  Preciose, supra, 129 N.J. at 459.  “[B]ald assertions” of ineffective assistance are not enough.  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   A petitioner “must allege facts sufficient to demonstrate counsel's alleged substandard performance,” and the court must view the facts alleged in the light most favorable to the petitioner.  Ibid.

A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating “a reasonable likelihood that his or her claim will ultimately succeed on the merits.”  State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997).   However, an evidentiary hearing need not be granted where the “defendant's allegations are too vague, conclusory, or speculative [.]”  Ibid. (citing Preciose, supra, 129 N.J. at 462–63).   But where there are “material issues of disputed fact which cannot be resolved by reference to the existing record, an evidentiary hearing should be held.”   State v. Pyatt, 316 N.J.Super. 46, 51 (App.Div.1998) (citing Preciose, supra, 129 N.J. at 460), certif. denied, 158 N.J. 72 (1999).

In this case, defendant argues that his plea counsel failed to investigate potential mitigating factors and raise them at sentencing, namely, defendant's lack of prior criminal record, and the possible influence of a more mature individual.  N.J.S.A. 2C:44–1(b)(7), (13).   Defendant claims that, had such factors been raised, his sentence would have been lower.

First, defendant's excessive sentence claim was adjudicated on direct appeal.   Accordingly, he is barred from raising it directly here.   R. 3:22–5.   Moreover, he has failed to establish a prima facie claim of ineffective assistance of counsel resulting in an excessive sentence.   Defendant merely makes bald assertions regarding the potential existence of mitigating factors without providing any certification or competent evidence supporting this claim.   This is not enough.   See Cummings, supra, 321 N.J.Super. at 170.   Additionally, he does not provide any basis in the record suggesting that these nebulous factors would have resulted in a lesser sentence.

Defendant also argues that his guilty plea was not knowing and voluntary because he was not informed of the parole period he faced upon release.   He claims that, had he known this information, he would not have pled guilty.   This matter could have been raised on direct appeal.   As it was not, the issue is not appropriate for PCR. R. 3:22–4.   Moreover, based on our review of the record, it is clear that defendant was fully apprised of the consequences of his guilty plea, including the mandatory parole period.   Accordingly, he has failed to set forth a prima facie case of ineffective assistance.   See Fritz, supra, 105 N.J. at 52.

Defendant further argues that his due process rights were denied because he was not afforded a waiver hearing to determine whether he would be tried as a juvenile or adult.   Additionally, defendant claims that his attorney was deficient in not opposing the waiver of his charges to Superior Court.   Again, as this issue could have been raised on direct appeal and was not, defendant is barred from asserting it here.   R. 3:22–4.

Additionally, we must point out that defendant has failed to provide the Family Court records of the juvenile proceedings concerning the waiver and subsequent transfer.   Since we have no records from the juvenile court proceedings, we cannot determine how the waiver was effectuated.   Nothing in the current record indicates whether defendant voluntarily agreed to the waiver, Rule 5:22–1, or the prosecutor made a motion to obtain a referral without the juvenile's consent, which entitled defendant to a hearing if requested, Rule 5:22–2.   As it was defendant's burden to prove ineffective assistance, Preciose, supra, 129 N.J. at 459, his failure to provide the records to support his argument is a fatal flaw.

Furthermore, as a seventeen-year-old juvenile, defendant was charged with a delinquent act, which, if committed by an adult, constituted criminal homicide.   The prosecutor simply had to prove that there was probable cause for the charged offense to have the matter transferred.   R. 5:22–2(c)(3);  State in re V.A., 212 N.J. 1, 10 (2012).   Defendant makes no claim that probable cause did not exist, and he points to no specific evidence in the record and provides no certification to counter the requisite probable cause finding.   Without such competent evidence, defendant's unsupported allegations are insufficient to present a prima facie case of ineffective assistance of counsel concerning waiver.   See State v. Jack, 144 N.J. 240, 254 (1996) (noting that to obtain hearing on issue of failure to have waiver hearing, defendant must make prima facie case of ineffective assistance by showing availability of evidence that would have changed the outcome of the hearing).

Affirmed.

FOOTNOTES

1.  FN1. The record does not contain any documents concerning the waiver of the juvenile court jurisdiction so we do not know if the waiver was voluntary, N.J.S.A. 2A:4A–27, or involuntary, N.J.S.A. 2A:4A–26.

PER CURIAM

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