STATE OF NEW JERSEY v. DAQUAWN REID DAQUAN REID DAQUAWN REID

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DAQUAWN REID, a/k/a DAQUAN L. REID, DAQUAWN L. REID, Defendant–Appellant.

DOCKET NO. A–6216–11T1

Decided: April 25, 2014

Before Judges Waugh and Accurso. Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Jennifer Moran, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.

Defendant Daquawn Reid appeals the dismissal of his petition for post-conviction relief (PCR).  We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On August 3, 2004, Reid, Eric Jones, and Paul Church drove to James Huntley's residence in Ewing Township, intending to rob him.   Church, who had a gun with him at the time, entered the house.   Reid heard a gunshot, after which Church ran out of the house and got in the car.   Reid, Church, and Jones then fled the scene.   Their vehicle was chased by the police.   Reid eventually left the vehicle and fled on foot.   Huntley died as a result of the wounds received during the robbery.

Jones was apprehended and gave a statement to the police on August 11.   He related details concerning the planning and execution of the robbery, implicating both Reid and Church, who were subsequently arrested.

In March 2005, Reid, Church, and Jones were indicted for first-degree felony murder, contrary to N.J.S.A. 2C:11–3(a)(3) and N.J.S.A. 2C:2–6 (count one);  first-degree murder, contrary to N.J.S.A. 2C:11–3(a)(2) and N.J.S.A. 2C:2–6 (count two);  first-degree robbery, contrary to N.J.S.A. 2C:15–1 and N.J.S.A. 2C:2–6 (count three);  second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39–4(a) and N.J.S.A. 2C:2–6 (count four);  and third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39–5(b) and N.J.S.A. 2C:2–6 (count five).

On June 27, 2005, Jones pled guilty to first-degree robbery.   In exchange for the plea and his cooperation with the State, the prosecutor agreed to recommend a ten-year term of imprisonment, with an eighty-five-percent period of parole ineligibility in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. Over the State's objection, however, the judge subsequently sentenced Jones as a second-degree offender, N.J.S.A. 2C:43–6(a)(2), imposing a nine-year sentence subject to NERA. Jones was sentenced after Reid's guilty plea and sentencing.

On February 21, 2006, Reid pled guilty to first-degree robbery.   In return for the plea and his agreement to testify against Church, the prosecutor recommended that Reid receive a sentence of incarceration for twelve-and-a-half years, subject to NERA. Reid's plea colloquy contains the following exchange:

[Defense counsel:] Daqua[w]n, directing your attention to August 3, 2004 were you in Ewing Township on that day?

[Reid:] Yes.

Q And did you go to a residence in Ewing Township that day with the intention of robbing an individual?

A Yes.

Q And you went with a Paul Church and an Eric Jones;  is that correct?

A Yes.

Q And one individual involved, Paul Church[,] had a gun with him when you went to that house;  is that correct?

A Yes.

Q And you participated in this event;  is that correct?

A Yes.

Q Do you recall if you heard a gunshot that day?

A Yes.

Q And was it after the gunshot, that Mr. Church came running out of the house?

A Yes.

Q And after you left the scene, did there come a point in time when your car, a Mercury[,] was being pursued by the police?

A Yes.

Q And did you get out of that car and run away and leave the vehicle?

A Yes.

The plea judge accepted the plea, stating that she was “satisfied as to the factual basis for the plea of guilty” and “satisfied that [Reid] has entered the guilty plea voluntarily based upon his responses to my questions and his demeanor in court today.”   The plea judge subsequently sentenced Reid in accordance with the plea agreement.

Reid filed an appeal addressing only the length of his sentence.   The appeal was heard on May 27, 2009, as part of a sentencing calendar.   Reid's appellate counsel argued that his sentence was excessive because the trial judge erred in (1) finding that there were no mitigating factors and (2) her application of aggravating factors.   We affirmed the sentence in an order on the same day.

Reid filed a pro se PCR petition on January 14, 2010.1  Appointed counsel filed a supplemental verified PCR petition and supporting brief on July 19, 2011.   Oral argument was held before the PCR judge on April 17, 2012.   PCR counsel argued that Reid's guilty plea was not entered into knowingly because his trial counsel never explained to him whether he was pleading as a principal or an accomplice.   According to PCR counsel, had Reid been aware of the difference he would have gone to trial despite Jones's agreement to testify against him.   He also argued that Reid gave an inadequate factual basis for accomplice liability.   The PCR judge dismissed Reid's petition in an opinion and order dated May 10, 2012.   This appeal followed.

II.

Reid raises the following issues through counsel on appeal:

POINT I:  THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS BECAUSE THE PLEA ATTORNEY:  (1) MADE A MISREPRESENTATION BY INFORMING THE DEFENDANT THAT HE WAS PLEADING GUILTY TO ROBBERY IN THE FIRST DEGREE AS A PRINCIPAL ACTOR RATHER THAN AS AN ACCOMPLICE;  AND (2) FAILED TO ENSURE THAT THERE WAS AN ADEQUATE BASIS TO SUPPORT THE DEFENDANT'S GUILTY PLEA.

A. THE DEFENDANT DID NOT KNOWING–LY ENTER INTO THE PLEA AGREEMENT.

B. THE RECORD CREATED DURING THE PLEA HEARING DOES NOT SUPPORT A CONVICTION FOR ROBBERY IN THE FIRST DEGREE.

POINT II:  THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS APPELLATE ATTORNEY IN THE DIRECT APPEAL BECAUSE THE APPELLATE ATTORNEY DID NOT RAISE THE ISSUE THAT THERE WAS AN INADEQUATE FACTUAL BASIS TO SUPPORT THE GUILTY PLEA FOR FIRST–DEGREE ROBBERY.  (Partially raised below)

POINT III:  THE SENTENCE IMPOSED ON THE DEFENDANT WAS ILLEGAL BECAUSE HE RECEIVED A GROSSLY DISPROPORTIONATE SENTENCE COMPARED TO THAT OF HIS CO–DEFENDANT.

POINT IV:  BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE FAILURE TO DO SO HAS RESULTED IN FUNDAMENTAL INJUSTICE REQUIRING REMAND.

He also raises the following issues in a pro se brief:

POINT I:  THE INDICTMENT SHOULD BE DISMISSED, BECAUSE DEFENDANT WAS UNABLE TO PROPERLY DEFEND HIMSELF AGAINST SUCH INDICTMENT, WITHIN THE MANNER OF HOW THE INDICTMENT WAS CHARGED.

POINT II:  DEFENDANT'S CONVICTION AND SENTENCE MUST BE VA[CAT]ED, BECAUSE DEFENDANT WAS WRONGFULLY CONVICTED OF A CHARGE IN WHICH DEFENDANT NEVER PLEAD GUILTY TO.

Before turning to the merits of the appeal, we outline the legal principles that govern our decision.  “Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.”  State v. Preciose, 129 N.J. 451, 459 (1992).   Under Rule 3:22–2(a), a criminal defendant is entitled to post-conviction relief if there was a “[s]ubstantial 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.”  “A petitioner must establish the right to such relief by a preponderance of the credible evidence.”  Preciose, supra, 129 N.J. at 459.  “To sustain that burden, specific facts” that “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 constitutionally ineffective assistance of counsel are well suited for post-conviction review.   R. 3:22–4(a)(2);  Preciose, supra, 129 N.J. at 460.   In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658–60, 104 S.Ct. 2039, 2046–47, 80 L. Ed.2d 657, 667–68 (1984).  Preciose, supra, 129 N.J. at 463;  State v. Fritz, 105 N.J. 42, 58 (1987).

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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a 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) (internal quotation marks omitted).   Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate “how specific errors of counsel undermined the reliability of the finding of guilt,” Cronic, supra, 466 U.S. at 659 n.26, 104 S.Ct. at 2047, 80 L. Ed.2d at 668;  see also Roe v. Flores–Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029, 1037, 145 L. Ed.2d 985, 998 (2000).   There must be “a probability sufficient to undermine confidence in the outcome.”  Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.

Finally, a defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel.  Preciose, supra, 129 N.J. at 462–64.  “As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim.”  Id. at 462–63.

Reid was charged with first-degree robbery as a principal, N.J.S.A. 2C:15–1, and an accomplice, N.J.S.A. 2C:2–6. The Criminal Code states the following:

a.  Robbery Defined.   A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another;  or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury;  or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase “in the course of committing a theft” if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.

[N.J.S.A. 2C:15–1.]

A person can be guilty of an offense committed by another if he is “legally accountable” for the conduct of that other person.  N.J.S.A. 2C:2–6(a).   A person is legally accountable for the conduct of another when “[h]e is an accomplice of such other person in the commission of an offense.”  N.J.S.A. 2C:2–6(b)(3).

A person is an accomplice of another person in the commission of an offense if:

(1) With the purpose of promoting or facilitating the commission of the offense;  he

(b) Aids or agrees or attempts to aid such other person in planning or committing it[.]

[N.J.S.A. 2C:2–6(c).]

“An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.”  State v. Whitaker, 200 N.J. 444, 458 (2009).   Additionally, “[t]o be found guilty as an accomplice, a defendant must not only share the same intent as the principal who commits the crime, but also must ‘at least indirectly participate[ ] in the commission of the criminal act.’ ”  Id. at 459 (second alteration in original) (quoting State v. Bielkiewicz, 267 N.J.Super. 520, 528 (App.Div.1993)).

The record of Reid's plea reflects that Reid admitted to accompanying Church and Jones to the victim's residence with the intention of robbing him, that he knew Church had a gun with him to use during the robbery, and that he “participated in th[e] event.” 2  While we believe that the plea colloquy could certainly have been more complete, we nevertheless agree with Judge Robert C. Billmeier that the facts admitted by Reid before the plea judge, along with the logical inferences from those facts, provided a sufficient factual basis for the plea.   Reid had the required intent to participate in, i.e., facilitate, Church's use of the gun to steal from the victim.   The use of the gun made the event a first-degree crime.  State v. Rumblin, 166 N.J. 550, 555 (2001) (“For defendant to be guilty of first-degree robbery as an accomplice, he, too, must have intended that the principal[ ] engage in the armed robbery and defendant must have acted purposely in planning, promoting, or facilitating that robbery.”).

We also reject Reid's assertion that his trial counsel did not adequately explain the nature of his plea or the difference between pleading as an accomplice as opposed to a principal.   Those are just “bald assertions” that do not warrant PCR relief.   See State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   It is clear from the plea colloquy that Reid was pleading as an accomplice.   He did not admit to going into Huntley's residence with the gun to rob him, but only to participating in the planning of the robbery and waiting outside while it occurred.   Reid told the plea judge that he had discussed the plea with his attorney and that it made sense for him to plead guilty.   In terms of a potential sentence, there was no difference between pleading as a principal or an accomplice.

Reid argues that his sentence was illegal, based on the three-and-a-half-year disparity between his sentence of twelve-and-a-half years and Jones's sentence of nine years.   We disagree.  “[A]n illegal sentence is one that ‘exceeds the maximum penalty provided in the Code for a particular offense’ or a sentence ‘not imposed in accordance with law.’ ”  State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)).   Reid's sentence was at the lower end of the sentencing range for a first-degree crime, which is ten to twenty years.  N.J.S.A. 2C:43–6(a)(1).   It was not illegal.   In any event, the difference between Reid's sentence and the one imposed on Jones did not rise to a level warranting the reduction of an otherwise legal sentence.   See State v. Roach, 146 N.J. 208, 231–34, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L. Ed.2d 424 (1996).   It was based on the differences between the two defendants and was not grossly disproportionate.

Because we have determined that there was no error with respect to the plea or the sentence, Reid was not entitled to an evidentiary hearing.   In addition, there was no ineffective assistance by appellate counsel in failing to raise arguments on direct appeal that we have found to be without merit.   Having reviewed the remaining issues raised by Reid, directly and through counsel, in light of the record before us and the applicable law, we find them to be without merit and not warranting further discussion in a written opinion.   R. 2:11–3(e)(2).

Affirmed.

FOOTNOTES

1.  FN1. Reid had filed an earlier petition, but withdrew it pending disposition of his appeal.

2.  FN2. Rule 3:9–2 requires a judge, before accepting a plea, to determine that there is a factual basis for the plea through “inquiry of the defendant and others.”   We note that the judge who took Reid's plea had previously taken Jones' plea, during which he testified that he, Church, and Reid had discussed use of the gun during the robbery beforehand.

PER CURIAM

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