STATE OF NEW JERSEY v. TERRELL FORTH (2011)

Defendant Terrell Forth appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing.   In a single point, defendant argues the following:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS, THAT COUNSEL INDUCED DEFENDANT TO ENTER INVOLUNTARY GUILTY PLEAS

We have considered this contention in light of the record and applicable legal standards.   We affirm substantially for the reasons expressed in the written opinion of Judge John A. Almeida.

On January 22, 2001, before Judge Almeida, defendant pled guilty to one count of Burlington County Indictment No. 00–08–0602 charging him with third-degree unlawful possession of a handgun, N.J.S.A. 2C:39–5(b).  Pursuant to the plea bargain, defendant was sentenced to a four-year term of imprisonment, concurrent to sentences he was already serving for convictions emanating from other counties.   The State dismissed the remaining counts of the indictment.

Two additional indictments were subsequently returned by the Burlington County grand jury in 2004.   On October 24, 2005, defendant pled guilty before a different judge to a single count of third-degree possession of cocaine, N.J.S.A. 2C:35–10(a)(1), in each indictment.   In return, the State agreed to recommend concurrent four-year sentences to be served concurrently with a thirteen-year term defendant was serving in Federal custody.   The judge imposed sentence in accordance with the terms of the plea bargain on October 24, 2005, and the State dismissed the remaining counts of the indictments.

Defendant did not file any appeal, but, on April 2, 2009, he filed a pro se PCR petition regarding his 2001 conviction on the weapons offense.   He alleged trial counsel provided ineffective assistance, specifically, that his attorney “fail[ed] to correctly advise [him] of [the] elements of the offense and coerced [him][in]to plead[ing] guilty.”   In a subsequent certification, defendant claimed trial counsel “coerced [him] into accepting the plea agreement because [he] repeatedly told [defendant] that [defendant] stood no chance at trial even though he agreed with [defendant] that the traffic stop that preceded the arrest was an illegal stop.”   Defense counsel “frightened” defendant by advising that he faced “20–30 years” on the charges, and defendant contended that his guilty plea was “not under the terms that [he] believed [he] agreed to and accepted.”

Defendant also claimed that he attempted to file his PCR petition “within the normal time ․ frame” but was unsuccessful because correspondence he sent to the court and the public defender's office was never received.   Defendant asked that his convictions be vacated, or, alternatively, that he be granted an evidentiary hearing.¹

On February 19, 2010, a hearing was held on defendant's PCR petition before Judge Almeida.   Based upon his recent conversation with defendant, PCR counsel waived defendant's appearance at the hearing.   Counsel argued that trial counsel rendered ineffective assistance by providing defendant with “misinformation as to whether or not to challenge the initial stop to suppress the evidence and ultimately it goes to whether or not [defendant] can make a knowing and voluntary plea.”

In a thorough written decision that accompanied his order denying defendant's petition, Judge Almeida concluded that based upon “several attempts to file his petition ․ through correspondence [with] the Office of the Public Defender,” defendant “ha[d] demonstrated excusable neglect” in not filing his petition within the five-year time bar contained in Rule 3:22–12(a).²  Judge Almeida noted that the grant of an evidentiary hearing was discretionary.   See, e.g., State v. Preciose, 129 N.J. 451, 462 (1992) (observing that while a “claim of ineffective assistance of trial ․ counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required,” it remains within the court's discretion whether such a hearing is necessary).   In this case, the judge concluded that defendant had failed to establish a prima facie case for relief so as to warrant such a hearing.   See, e.g., State v. Rountree, 388 N.J.Super. 190, 206 (App.Div.2006) (“Once a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether ‘the result of the proceeding would have been different.’ ”) (quoting State v. Russo, 333 N.J.Super. 119, 140 (App.Div.2000)), certif. denied, 192 N.J. 66 (2007).   Judge Almeida then considered the merits of defendant's claim of ineffective assistance of counsel applying the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).   To establish a claim of ineffective assistance of counsel, a defendant must show “ ‘that 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 that 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.   Defendant must show by a “reasonable probability” that the deficient performance affected the outcome.  Fritz, supra, 105 N.J. at 58.

“[T]o set aside a guilty plea based on ineffective assistance of counsel, 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) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied sub nom;  DiFrisco v. New Jersey, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996)).

Citing extensively from the transcript of the plea proceedings, Judge Almeida concluded:

From his colloquy in Court on January 22, 2001 and October 24, 2005, defendant exhibited his understanding of the plea agreements and that it was his decision, upon careful discussion with his counsel, that pleading guilty was a preferred choice rather than proceeding to trial.   Further, the defendant does not indicate how he was prejudiced given that he entered into two beneficial plea agreements.   Therefore, defendant's contention that he was denied effective assistance of counsel because he was not properly advised of the material elements of the plea is unfounded.   The record clearly reflects that defendant himself acknowledged that his rights had been explained to him, that he understood those rights, that he waived those rights, and, most importantly, he understood the charges against him;  he understood the plea agreement, and had adequate discussions with his attorney before entering into the plea agreement.   For those reasons, defendant is unable to establish even the first prong of Strickland.

We agree that defendant's own words belie the assertions made years later that trial counsel never advised him of the elements of the offenses and “coerced” him into pleading guilty.

In his brief, defendant contends that the “in-court record does not necessarily reflect what occurred out of court or behind the scenes.”   However, we have said that “in order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel.”  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   Defendant's pro se and supplemental certifications failed to provide any detail regarding the “improper[ ] advi[ce]” rendered by trial counsel.   Defendant, for example, did not demonstrate how the arrest leading to his weapons conviction was the result of “an illegal stop,” such that a motion to suppress likely would have been successful.   Defendant also failed to explain how his guilty pleas “w[ere] not under the terms that [he] ․ agreed to and accepted.”   In short, defendant failed to establish a prima facie case entitling him to an evidentiary hearing on his PCR petition.

Affirmed.

FOOTNOTES

FN1. Defendant's PCR petition did not refer to the two CDS convictions.   At the hearing, PCR counsel advised the judge that defendant wanted him to advance “the argument that [PCR counsel] propounded to the Court” in his brief, which is in the appellate record.   The brief referenced all three indictments, as does defendant's notice of appeal..  FN1. Defendant's PCR petition did not refer to the two CDS convictions.   At the hearing, PCR counsel advised the judge that defendant wanted him to advance “the argument that [PCR counsel] propounded to the Court” in his brief, which is in the appellate record.   The brief referenced all three indictments, as does defendant's notice of appeal.

FN2. At the time defendant filed his PCR petition, this rule provided:  “A petition to correct an illegal sentence may be filed at any time.   No other petition shall be filed ․ more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.”.  FN2. At the time defendant filed his PCR petition, this rule provided:  “A petition to correct an illegal sentence may be filed at any time.   No other petition shall be filed ․ more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.”

PER CURIAM