STATE OF NEW JERSEY v. KEVIN RAHILLY (2013)

Defendant Kevin C. Rahilly appeals from the August 29, 2011 order denying his petition for post-conviction relief (PCR) after oral argument and after an evidentiary hearing as to one issue only.   The Burlington County Grand Jury returned Indictment No. 06–04–0468, charging defendant with first-degree robbery, N.J.S.A. 2C:15–1(a)(2), and related charges.¹  Defendant claims that he was deprived of the effective assistance of counsel because his lawyer failed to pursue a Miranda ² hearing and failed to inform him that no surveillance videotape existed from the store where the robbery occurred.   He also alleges that his attorney did not accurately advise him of the consequences of “pleading open” ³ to a first-degree robbery charge, rather than accepting an agreed-upon maximum sentence of eight years.   Defendant was sentenced to ten years in prison with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43–7.2. Because his attorney did not advise him that by “pleading open” the judge would be required to impose a sentence of at least ten years, unless the judge found both that the mitigating factors substantially outweigh the aggravating factors and that compelling reasons demonstrated that the interest of justice demands such a reduced sentence, we reverse and remand to allow defendant to withdraw his guilty plea and proceed to trial.

Defendant admitted at his guilty plea hearing that on October 20, 2005, he entered a Quickie Mart in Burlington, showed the clerk a bladeless box cutter and stole $250.   Defendant did not appear at the scheduled sentencing date.   He was sentenced approximately six months later after being rearrested.   The State sought a sentence of twelve to thirteen years.   Defendant spoke on his own behalf and presented letters and witnesses attesting to his efforts at rehabilitation, his payment of child support for his children and his positive presence in his son's life.

The PCR judge determined without a hearing that it was not significant whether defendant's counsel had misinformed defendant about the existence of a store surveillance videotape.   She found that sufficient other evidence existed such that defendant could not demonstrate that he would not have pled guilty had he known of the absence of the videotape.   The PCR judge also determined that pursuit of a Miranda hearing would have been unsuccessful.   She ordered an evidentiary hearing to determine whether defense counsel misinformed defendant of the consequences of “pleading open.”

At the evidentiary hearing privately retained defense counsel testified:

A: Mr. Rahilly decided he was going to plead open.   At which time I advised him [of] the consequences of pleading open.

Q: What did you say to him?

A: I told Mr. Rahilly that the judge—there was no way the judge was going to give him under eight years unless we could prove that the mitigating factors far outweighed the aggravating factors.[4]  And I explained to him that we would have to show that—basically convince the judge to go lower than the 80 percent.

․

[The prosecutor] came back and spoke to Mr. Rahilly also and advised him [of] the same thing, that he was—eight years he thought was a fair offer and he would not get any better.

Defense counsel testified that he had invited the prosecutor to speak to defendant in order to convince him to accept the sentencing maximum of eight years with the eighty-five percent parole disqualifier.   When asked whether he explained the sentencing ramifications of pleading guilty to a first-degree crime such as robbery, counsel stated he told defendant he was facing a twenty-year maximum sentence.   Counsel testified that he went to speak to the sentencing judge with the prosecutor and reported back that the judge “actually told me if he was in a good mood [defendant] might get the eight but he would never go under the eight.”   The defense lawyer said he explained to defendant that he could accept the maximum as offered by the State, go to trial or “plead open and let the judge decide.”   He testified that he told defendant that he “strongly [did] not recommend” the third option.   Counsel then testified,

I told him if he pled open he was facing up to 20 years maximum, and the only way that he was going to get less is if he convinced the judge that all mitigating factors outweighed the aggravating factors in such a great detail that the judge would give him less time.   I also told him that wasn't going to happen.

On cross-examination counsel stated:

I believe what I told Mr. Rahilly was mitigating circumstances have to outweigh the aggravating circumstances.   And we talked that he had no mitigating circumstances so he wasn't going to win.

Later he testified:

As I stated before, I believe that in order for [the judge] to give [defendant] a lesser sentence the mitigating factors must highly outweigh the aggravating factors and that's what I told [defendant].   That's what I believe the law is.

He elaborated:

Mr. Rahilly was told that he had no way of convincing the judge to downgrade with just character witnesses.   Mr. Rahilly was told that we had nothing else for him.   Mr. Rahilly decided that I was wrong, he was going to bring in a bunch of witnesses and the judge was going to give him probation, that was the extent.

Defense counsel conceded that he made no argument to the judge at sentencing that defendant should receive less than a first-degree sentence.

The assistant prosecutor who handled the plea also testified, stating that he met with defendant at his lawyer's request, with defense counsel and defendant's girlfriend.   The assistant prosecutor indicated that he told defendant:

[I]f you do agree to plead 8/85 as [defense counsel] standing right here can attest to, he could always argue for less at sentencing, I wouldn't be happy about that but that is your right․

We also discussed, both of us, meaning [defense counsel] and I with Mr. Rahilly, that if he chose to plead open, meaning not take my offer and plead open to the first degree robbery, that chances are he would get somewhere ten and above because the first degree range is, of course, ten years to twenty years.   Whether or not the judge ․ would agree to go less at that sentencing was entirely up to the judge.   It was a small possibility but it's always there if the judge were to make very significant findings regarding mitigation.

The assistant prosecutor also confirmed defense counsel's testimony regarding the meeting in chambers with the sentencing judge.

Defendant and his friend, Diane DeMarco, testified that defense counsel told defendant that he could only bring in witnesses at sentencing if he “pled open,” that the assistant prosecutor never spoke to either of them concerning the plea and that defense counsel never had any discovery documents.

At the time he pled guilty, the judge explained with regard to sentencing only:

[Y]ou are pleading open, which means there's no recommendation as to sentence from the State[.]  ․ So it would be up to the Court as to what sentence.   The Court could sentence you anywhere up to 20 years[.]

The PCR judge found defendant and DeMarco incredible and former defense counsel and the assistant prosecutor to be credible.   The judge stated,

Therefore, in conclusion, I do believe that the defendant was told by [trial counsel], [the assistant prosecutor] and the judge on the record even that he could get ten years, up to 20 years, actually, that there was no floor of eight years.   If you're being told you can get up to 20 years, you're pleading open and there is no recommendation, there is no floor.   That the defendant understood this.   He's not unintelligent.   The language is clear.   This defendant simply made his own decision and defied this advice or even the explanations of the Court.

Defendant raises the following issues on appeal:

POINT I:  THE PCR COURT ERRED IN DENYING Mr. RAHILLY'S PETITION FOR POST–CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIM THAT HIS ATTORNEY WAS INEFFECTIVE FOR FAILING TO ADVISE HIS CLIENT THAT THE STORE SURVEILLANCE TAPE WAS NOT PRESERVED.

POINT II:  THE PCR COURT ERRED IN DENYING MR. RAHILLY'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ON THE ISSUE OF WHETHER MR. RAHILLY WAS CORRECTLY ADVISED OF THE CONSEQUENCES OF HIS GUILTY PLEA.

A defendant claiming that his attorney was ineffective in his representation “must demonstrate first that counsel's performance was deficient, i.e., that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.' ”  State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984)).   The defendant also must demonstrate prejudice.   A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient.  Ibid. “ ‘The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”  Id. at 279–80 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698;  State v. Hess, 207 N.J. 123, 146 (2011);  State v. Winder, 200 N.J. 231, 254–55 (2009)).   This two-pronged standard has been expressly adopted in New Jersey.  Id. at 279 (citing State v. Fritz, 105 N.J. 42, 58 (1987)).

This additional standard also applies in the context of guilty pleas:

[T]he first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258, 93 S.Ct. 1602, 36 L. Ed.2d 235 (1973) ], and McMann v. Richardson, [397 U.S. 759, 90 S.Ct. 1441, 25 L. Ed.2d 763 (1970) ].   The second, or “prejudice,” requirement, on the other hand, 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) (emphasis added).]

Defendant rejected the State's offer to cap his exposure at eight years with an eighty-five percent period of parole ineligibility.   Instead, he chose to plead guilty to a first-degree crime with no sentencing limitation.   The assistant prosecutor testified that this was the first time he had ever experienced a defendant rejecting a sentence limitation in order to “plead open.”

The PCR judge found defendant and his friend incredible and his trial counsel believable.   We defer to these findings of the PCR judge because she had the opportunity to assess the credibility and demeanor of the witnesses first-hand.  State v. Campfield, 213 N.J. 218, 229–30 (2013) (citing State v. Locurto, 157 N.J. 463, 471 (1999)).   We also must defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record.  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483–84 (1974).

Disregarding the testimony of defendant and his friend, which the PCR judge found not to be credible, defense counsel's version of what he explained to defendant substantiates defendant's claim of ineffective assistance of counsel.   Defendant is entitled to a clear and accurate recital of the law from his own attorney.   No defendant should be required to depend on advice offered by the State.   The unusual process of inviting the assistant prosecutor to speak to defendant does not discharge defense counsel's duty to advise defendant in confidence.   Nor did the prosecutor or judge clarify the incomplete information provided by defense counsel.

The law is clear.   The judge must sentence, “[i]n the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years[.]”  N.J.S.A. 2C:43–6(a)(1).   The judge is only permitted to sentence a defendant to less than ten years on a first-degree charge where “the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands․”  N.J.S.A. 2C:44–1(f)(2).   Defense counsel's testimony that he informed his client that the judge would have to find that mitigating factors “far outweighed” or “highly” outweighed the aggravating factors to sentence defendant to a term of less than ten years is not a sufficient explanation of the law to conform to the requirement of effective assistance of counsel.   He left out entirely the heavy burden of proving the compelling reasons required to demonstrate that the interest of justice demands such a sentence.   See State v. Megargel, 143 N.J. 484, 500–502 (1996).

Here, defendant rejected the State's offer that he be sentenced to no more than the mid-range of a second-degree sentence.   It is completely illogical to reject that portion of the plea agreement that restricts the maximum term to less than the statutory minimum for a first-degree crime, given that a defendant may always argue for a lesser sentence than the maximum promised by the State.  State v. Hess, 207 N.J. 123, 129 (2011).   For defense counsel to present the option to defendant of rejecting a sentence reduction represents ineffective assistance of counsel.   The fact that counsel recommended against this option does not render his assistance effective.   Had defendant understood the law and chosen to accept the sentencing provision of the agreement, he would still have had the right to present evidence in mitigation.   Had he accepted the full plea agreement, he would have received no more than eight years in prison.

We need not consider whether a hearing should have been held regarding defendant's allegation that his attorney should have informed him that, contrary to what the police told him, the State did not have a surveillance videotape from the store where the robbery occurred.   We do note that regardless of the other evidence, a decision to plead guilty might well be influenced by a videotape of the scene of the robbery in which defendant can be identified.

We reverse and remand to allow defendant to withdraw his guilty plea.

FOOTNOTES

FN1. The State agreed to dismiss count two, third-degree possession of a knife, N.J.S.A. 2C:39–4(d), and count three, fourth-degree possession of a knife under circumstances not manifestly appropriate for a lawful use, N.J.S.A. 2C:39–5(d).  Defendant also agreed not to file a direct appeal..  FN1. The State agreed to dismiss count two, third-degree possession of a knife, N.J.S.A. 2C:39–4(d), and count three, fourth-degree possession of a knife under circumstances not manifestly appropriate for a lawful use, N.J.S.A. 2C:39–5(d).  Defendant also agreed not to file a direct appeal.

FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

FN3. We understand “pleading open” to mean that the defendant pleads guilty to a charge without a sentencing agreement..  FN3. We understand “pleading open” to mean that the defendant pleads guilty to a charge without a sentencing agreement.

FN4. N.J.S.A. 2C:44–1(a) & (b)..  FN4. N.J.S.A. 2C:44–1(a) & (b).

PER CURIAM