STATE OF NEW JERSEY v. ANDRE DENNIS (2013)

Defendant Andre Dennis appeals from the August 15, 2011 Hudson County Law Division order denying his petition for post-conviction relief (PCR).  After our review of the record, the counseled briefs, and defendant's pro se brief, we reverse and remand for resentencing.

On April 20, 2007, defendant entered a guilty plea in Hudson County to aggravated manslaughter, an amended count of a multi-count indictment;  the recommended sentence was eighteen years subject to eight-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, to be served concurrent to the anticipated sentence on defendant's pending unrelated murder charges in Monmouth County.¹

Defendant was not sentenced until July 22, 2008, some fifteen months later, as the matter was held in abeyance awaiting disposition of the Monmouth County murder charge.   Despite the delay, when this sentence was imposed, the Monmouth County charges had not been resolved.

Between plea and sentence, on September 12, 2007, defendant, acting pro se, filed a motion to withdraw his guilty plea.   That application was itself withdrawn prior to the sentence hearing.

Defendant appealed his Hudson County sentence by way of the excessive sentence oral argument calendar.   See Rule 2:9–11.   The sentence was affirmed on March 11, 2010.   Defendant's pro se petition for PCR followed on July 1, 2010.   A counseled and a separate pro se brief were submitted in support of the petition.

The charges stem from the killing of Rayshawn Rush, who hours prior to the shooting had robbed defendant and his brother.   After the robbery, the brothers returned to their home, retrieved handguns, and tracked Rush down.   When he entered his guilty plea, defendant admitted to shooting Rush from a distance of about ten feet.   Defendant's brother, in establishing the factual basis for his own guilty plea, said that five or six hours elapsed between the initial robbery and the shooting.

During his plea colloquy, defendant also said he did not “know if it was hours” between robbery and shooting.   He did not contradict his trial attorney when the latter told the trial judge that he and defendant had discussed the defense of passion provocation and imperfect self-defense, and that “none of those things in this case applied ․ by our reading of the discovery.”   When directly asked if he was abandoning all potential defenses, defendant agreed.

At the sentence hearing, defendant expressed his remorse for killing the victim, with whom he had been acquainted since childhood.   He explained his conduct was influenced by his use of PCP, and observed that he could have made a “better decision.”   He went on to state that his poor judgment not only cost the victim his life, but was going to cost him and his brother “a lot of time on [their lives] in jail[.]”

While sentencing defendant, the trial judge reiterated that the Hudson County sentence would be concurrent to the Monmouth County term of imprisonment.   He said that “the State has stood by the concurrent aspect, even if there is a consecutive sentence in Monmouth County.”

At the PCR hearing, that judge noted that the Monmouth County sentence had not been made concurrent to the Hudson County sentence, and offered to resentence defendant so the sentences would run concurrently.   After adjourning the matter so PCR counsel could speak with defendant, defendant rejected the judge's offer, and the judge proceeded to address the merits of his PCR petition.

That judge found defendant's arguments failed to meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed.2d 674, 693, 698 (1984);  accord State v. Fritz, 105 N.J. 42, 58 (1987).   Because defendant had not established a prima facie case, the judge denied his request for an evidentiary hearing.   With regard to defendant's claim that counsel was ineffective by virtue of advising him to dismiss his pro se motion to withdraw his guilty plea, the court determined that even if defendant had pursued the application, he failed to meet the State v. Slater standard, including the absence of a colorable claim of innocence, lack of legitimate reasons for withdrawal, and the existence of a plea bargain.   See State v. Slater, 198 N.J. 145, 157–58 (2009).   The judge considered counsel's on-the-record statements that he and his client had discussed the defense of passion/provocation, as well as imperfect self-defense, after reviewing discovery, to effectively refute defendant's allegation that counsel inadequately investigated the matter or conferred with him.   The judge also deemed defendant's claim that his attorney was ineffective because he had not filed a Miranda motion to lack merit, as the only basis for the suppression of his statements were that he had said “a lot of people” had been “bothering” him after he was taken into custody.

On appeal, defendant argues in his counseled brief that “the PCR court erred in making factual findings without the benefit of an evidentiary hearing.”   In his uncounseled brief, defendant asserts the following additional points of error:

POINT ONE:

The post-conviction relief (PCR) court failed to acknowledge and issue a statement of findings and conclusions of law as required by Rule 1:7–4 relating to POINT V of defense counsel's brief and all issues raised in defendant's pro se brief in violation of his right to due process of law as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I paragraph 10 of the New Jersey constitution.

POINT TWO:

Current PCR counsel ․ failed to adequately prepare and exercise normal customary skills in her preparation of defendant's PCR and failed to investigate and properly plead his pro se issues in violation of Rule 3:22–6(d) and his right to the effective assistance of PCR counsel and Due Process of Law as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I Paragraph 10 of the New Jersey constitution.

I

It is virtually axiomatic that in order for a defendant to obtain relief based on ineffective assistance grounds, he is obliged to demonstrate not only the particular manner in which counsel's performance was deficient, but also to establish that the deficiency prejudiced his right to a fair trial.   See, e.g., Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693;  Fritz, supra, 105 N.J. at 58.   We are persuaded that the alleged deficiencies here clearly failed to meet either the performance or prejudice prongs of the Strickland test.   We are equally persuaded, however, that in this rare case, defendant may have incidentally established that his counsel's failure to secure the full benefit of the bargain he negotiated constitutes at least a prima facie case of ineffective assistance of counsel which requires resentencing.

II

It is undisputed that a defendant is entitled to effective assistance of counsel in plea negotiations.  State v. Taccetta, 351 N.J.Super. 196, 200 (App.Div.), certif. denied, 174 N.J. 544 (2002).   This includes during the decision-making process as to whether to accept an offer made by the State.   Lafler v. Cooper, 566 U.S. _, 132 S.Ct. 1376, 1387, 182 L. Ed.2d 398, 410 (2012).   An attorney fails to provide effective assistance by affirmatively misinforming a defendant about the consequences of a plea.  Missouri v. Frye, 566 U.S. _, 132 S.Ct. 1399, 1406, 182 L. Ed.2d 379, 388 (citing Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1486, 176 L. Ed.2d 284, 299 (2010));  State v. Gaitan, 209 N.J. 339, 351–52 (2012), cert. denied, _ U.S. 1454, 133 S.Ct. 1454, 185 L. Ed.2d 361 (2013);  State v. Maldon, 422 N.J.Super. 475, 485 (App.Div.2011).

By analogy, an attorney provides ineffective assistance when, after assuring his client of the certainty of the consideration which induces the defendant to accept the plea, counsel takes no further action to see that the defendant obtains the benefit of his bargain.   In this case, counsel could have engaged in a number of steps to follow through on his client's behalf and effectuate the agreement reached in Hudson County.   Counsel could, for example, have filed a motion in Hudson County to resentence defendant after the Monmouth sentence was imposed so he could serve his term concurrently.

A concurrent sentence is a distinct inducement to a defendant to accept a plea bargain.   To have lost this aspect of the agreement reached with the prosecutor because of trial counsel's seeming silence on the subject may well be significant prejudice, which can be corrected.

In Lafler, the defendant rejected a plea offer and instead elected to go to trial, based on allegedly ineffective advice.  Lafler, supra, 566 U.S. at _, 132 S.Ct. at 1385, 182 L. Ed.2d at 407.   In scenarios such as those, however, a defendant bears a heavy burden in attempting to establish prejudice because doing so involves several unknowns, including demonstrating that the court would have accepted the plea agreement, and the necessity to establish that such an agreement, if accepted, would likely have resulted in a more favorable sentence.  Ibid. Because of the substantial hurdles faced by a defendant attempting to show prejudice, among other reasons, the Supreme Court held that a defendant did not have a constitutional right to specific performance of a rejected plea offer.  Id. at _, 132 S.Ct. at 1391, 182 L. Ed.2d at 414.

In this case, however, where the terms of the agreement struck by the parties are known, they were accepted by the court, and defendant was repeatedly assured his sentence would be concurrent, specific performance is appropriate.   Defendant's failure to obtain all the benefits of the bargain implicates his constitutional rights, as he waived his right to a trial in exchange for a sentence which he ultimately did not receive.

But any ineffective assistance of counsel here may be corrected by implementing the remedy the judge offered and defendant rejected during oral argument on the PCR petition:  a resentence in accordance with the terms of the plea agreement, i.e., a sentence concurrent to the Monmouth County sentence.   In this unusual situation, no testimonial hearing is required as the salient facts are fully developed on the record.   Thus we remand so defendant's sentence may be made concurrent to the Monmouth County sentence.

III

Defendant's remaining points warrant scant discussion.   He contends in the counseled brief that his certification asserts sufficient facts to raise several legal issues warranting an evidentiary hearing.   We find that argument to be without merit, as defendant's assertions were not only bald allegations, in some instances, the claims were contradicted by the record of the plea colloquy as well as the sentence hearing.   See State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).

Defendant also argues that counsel's failure to file a Miranda motion was ineffective assistance.   Since the only fact supporting such an application was his statement that “a lot of people been bothering me[,]” such a motion would have failed.   The failure to make applications that lack merit is not ineffective assistance of counsel.  State v. O'Neal, 190 N.J. 601, 609 (2007).

Defendant further contends that his attorney was ineffective in persuading him to withdraw his pro se motion to withdraw his guilty plea.   Defendant had not made a colorable claim of innocence, and both he and his brother made sworn statements on the record inculpating him.   The first Slater factor — a colorable claim of innocence — was therefore not satisfied.   See Slater, supra, 198 N.J. at 157.   Hence defendant had no chance of success had his motion to withdraw his guilty plea been heard.   Therefore even if the application were withdrawn based on counsel's advice, trial counsel did no less than give competent advice.

In his pro se submission, defendant complains that the judge who denied his PCR application did not address all of the issues he raised in his pro se brief.   In the main, the trial court did address defendant's pro se points.   Moreover, all are so lacking in merit as to not warrant further discussion in this opinion.   See R. 2:11–3(e)(2).

Reversed and remanded for resentencing.   We do not retain jurisdiction.

FOOTNOTES

FN1. Although not entirely clear from the record, it appears that defendant was sentenced to life on the Monmouth County charge consecutive to this matter, after conviction by a jury;  he was also sentenced to a consecutive ten-year term there on the related weapons offenses..  FN1. Although not entirely clear from the record, it appears that defendant was sentenced to life on the Monmouth County charge consecutive to this matter, after conviction by a jury;  he was also sentenced to a consecutive ten-year term there on the related weapons offenses.

PER CURIAM