STATE OF NEW JERSEY v. VANCE HERRING (2013)

Defendant Vance Herring appeals from a March 25, 2011 order of the Law Division denying his petition for post-conviction relief (PCR).  He claims his attorneys provided ineffective assistance in his defense when he pleaded guilty to carjacking pursuant to a plea agreement that provided for the minimum ordinary sentence for that offense.   We affirm.

As viewed most favorably to defendant's claims made in his PCR petition, on August 22, 2006, defendant and three others were driving in a stolen Dodge Intrepid in the parking lot of a mall in Elizabeth, and they were looking for another car to carjack.   They spotted a BMW and pulled up behind it.   At that point, co-defendant Terrel Harris pulled a gun from his waist.   Defendant claims he did not know that Harris had a gun, but he does not deny that he saw the gun before committing the carjacking.

According to defendant's claims in his PCR petition, Harris told him to get out of the Intrepid and to knock on the window of the BMW to distract the driver.   Defendant claims he hesitated for a moment, and Harris repeated the instruction a second time in a firm voice.   Defendant then got out of the Intrepid, approached the passenger side of the BMW, and knocked on the window.   At the same time, Harris approached the driver's side of the BMW and pointed his gun at the driver.   He told the driver to get out and to give him the keys and his wallet.   Defendant heard these commands and saw the gun pointed at the driver's head.   Harris then pulled the driver out physically and took his keys.   The driver fled on foot.   Harris got into the driver's seat and unlocked the passenger door.   Defendant got into the car, which Harris then drove away.

The other two co-defendants followed in the Intrepid.   The driver of the BMW immediately reported the robbery to an off-duty police officer who was working as a security guard at the mall, and descriptions of the two cars were quickly reported to the police.   The BMW and Intrepid were located minutes later blocked by traffic on a ramp near the mall.   Harris and the driver of the Intrepid fled on foot but were soon apprehended.   The police retrieved an inoperable handgun that Harris had thrown to the ground as he fled.   Defendant remained in the BMW and was arrested.   At police headquarters, the driver of the BMW identified defendant, Harris, and one other co-defendant as the persons who had committed the crime.   The fourth individual was subsequently identified and also arrested.

A nine-count indictment was returned against the four defendants in February 2007, eight counts of which charged defendant with:  first-degree carjacking, N.J.S.A. 2C:15–2;  first-degree armed robbery, N.J.S.A. 2C:15–1;  fourth-degree aggravated assault, N.J.S.A. 2C:12–1(b)(4);  second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a);  third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5(b);  two counts of third-degree receiving stolen property, N.J.S.A. 2C:20–7;  and third-degree terroristic threats, N.J.S.A. 2C:12–3.

On April 23, 2008, the second day of jury selection for the trial of the four defendants, the three co-defendants all accepted plea offers and pleaded guilty to various charges.   Harris pleaded guilty to carjacking and was later sentenced to thirteen years in prison subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. The other two co-defendants pleaded guilty to lesser charges subjecting them to four years imprisonment.   In their plea allocutions, the co-defendants implicated defendant in planning and carrying out the carjacking.   Defendant's trial was postponed to October 2008.

On October 27, 2008, defendant accepted an eleventh-hour reduction of the sentencing exposure the prosecutor's office had offered to him, and he pleaded guilty to carjacking pursuant to a plea agreement for a ten-year NERA sentence.   At his plea hearing, defendant admitted that he and the others intended to carjack the BMW;  that he knew Harris had a gun before stepping out of the Intrepid to knock on the window and thus participate in the carjacking;  and that he rode away in the BMW with Harris after seeing Harris threaten the driver with his gun and take his keys.

Before the date scheduled for his sentencing, defendant moved to withdraw his guilty plea.   He claimed that his attorney had pressured him to plead guilty and that his actions did not prove all elements of the crime of carjacking.   The court heard argument, reviewed defendant's contentions in view of the four factors established in State v. Slater, 198 N.J. 145, 158–61 (2009), and denied the motion to set aside the guilty plea.   The court then sentenced defendant to ten years imprisonment, subject to the eighty-five percent parole ineligibility and five-year special parole provisions of NERA.

Defendant filed a direct appeal, which we heard on an excessive sentencing oral argument calendar pursuant to Rule 2:9–11.   By order filed on May 19, 2010, we affirmed defendant's sentence.

In June 2010, defendant filed the PCR petition that is the subject of this appeal.   An Assistant Public Defender was appointed to represent defendant on his PCR petition.   The PCR petition raised four claims before the Law Division:  (1) that the factual basis for defendant's guilty plea to carjacking was insufficient;  (2) that his plea attorney was ineffective in moving before his sentencing to withdraw the guilty plea;  (3) that the attorney was also ineffective in failing to seek a lower sentence within the second-degree range;  and (4) that his appellate attorney was ineffective in failing to raise and argue that the trial court erred in denying his motion to withdraw his guilty plea.   The Law Division heard argument on the petition on March 25, 2011, and denied it the same day by oral decision.

On the present appeal, defendant argues:

THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, BECAUSE APPELLATE COUNSEL COMMITTED A SERIOUS ERROR BY FAILING TO ARGUE THAT THE TRIAL COURT, PRIOR TO SENTENCING, ABUSED ITS DISCRETION BY DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA. HAD THE APPELLATE COUNSEL RAISED THIS ISSUE, THE APPELLATE COURT WOULD HAVE REVERSED THE TRIAL COURT'S DECISION AND ALLOWED THE DEFENDANT TO WITHDRAW HIS PLEA.

Defendant's argument is without merit.   The PCR petition was properly denied without an evidentiary hearing because there is no likelihood that defendant would have been successful on an appeal of the denial of his motion to withdraw his guilty plea or otherwise.¹

Defendant's claims and arguments do not overcome the presumption that he received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution.   See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed.2d 674, 694, 698 (1984);  State v. Loftin, 191 N.J. 172, 198 (2007).   On a PCR petition, the defendant bears the burden of proving that his attorney's assistance was a violation of his constitutional rights.  Loftin, supra, 191 N.J. at 198.   Here, defendant's allegations did not satisfy both parts of the Strickland test:  first that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.   Second ․ that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”  Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693;  see State v. Fritz, 105 N.J. 42, 51–52 (1987).   Where ineffective assistance is alleged following a guilty plea, the defendant satisfies the second part of the Strickland test by showing “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”  Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L. Ed.2d 203, 210 (1985).

Defendant's claims arise out of his mistaken belief that his role in the carjacking was not sufficient to convict him of the crime because he did not wield the gun and only learned shortly before the crime was committed that Harris intended to use a gun to commit the carjacking.   He contends that all the essential elements of carjacking were not proven by his admitted conduct in seeking a car to be stolen by force from the driver, in approaching the car and knocking on the passenger window while Harris threatened the driver with a gun, and in getting into the car and riding away with Harris.

The elements of carjacking that are potentially relevant in the circumstances of this case are:

1. that the defendant was in the course of committing an unlawful taking of a motor vehicle;

AND

2. that while in the course of committing an unlawful taking of a motor vehicle the defendant

a. knowingly inflicted bodily injury or used force upon an occupant or person in possession or control of a motor vehicle

OR

b. knowingly threatened an occupant or person in control with, or purposely or knowingly put an occupant or person in control of the motor vehicle in fear of, immediate bodily injury․

[Model Jury Charge (Criminal), “Carjacking” (2005).]

There is no dispute that Harris threatened immediate bodily injury to the driver of the BMW and used force to remove him from the vehicle.   The fact that defendant did not personally point the gun and make threatening remarks, and did not personally use physical force to remove the driver from the car, does not mean that he is not guilty of carjacking.   He knowingly and purposefully participated as an accomplice to the crime by distracting the driver from the passenger side and also by showing the driver that more than one person was engaged in forcibly stealing his car.   Defendant's claims that he did not know about the gun until immediately before the incident are of no avail.   He knew force would be used to commit the theft of the car from an occupant, and he also knew that his co-defendant had a gun in his hand as they approached the BMW. Defendant cannot credibly claim that he was not aware of the use of a weapon or of other force before he agreed to commit the crime.

Nor is defendant's claim viable that he committed the crime under duress.   He contends that Harris's display of the gun immediately before the carjacking was evidence that his attorney should have used to prove he acted under duress.   N.J.S.A. 2C:2–9(a) provides in relevant part:  “[I]t is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.”   Here, defendant did not present any evidence that Harris used force or threatened to use force against him.   Moreover, an objective standard applies to determining whether “a person of reasonable firmness” would be able to resist the force that was used or threatened.  State v. B.H., 183 N.J. 171, 199 (2005).   Harris's displaying his gun and using a firm voice was not sufficient to compel a person of reasonable firmness to commit the serious crime of carjacking.

At the time that defendant moved to withdraw his guilty plea, the Law Division concluded that three of the four Slater factors favored denial of the motion.   Defendant did not assert a colorable claim of innocence, he did not present strong reasons for seeking to withdraw his plea, and a plea agreement favorable to defendant had been entered that recommended the minimum ordinary sentence for the first-degree crime of carjacking.   See Slater, supra, 198 N.J. at 157–58.   The evidence against defendant was strong, and he likely would have been convicted of first-degree crimes if he stood trial.   His plea attorney was not ineffective in advising him to plead guilty, or in failing to persuade the court to permit defendant to withdraw his guilty plea.   Furthermore, there was virtually no chance of success in defendant's contentions had his appellate attorney pursued the Slater issue on direct appeal.   The performance of the attorneys at the time of the guilty plea or on appeal was not constitutionally deficient.

Finally, the court did not abuse its discretion in deciding the PCR petition without holding an evidentiary hearing.   See State v. Marshall, 148 N.J. 89, 157–58, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997);  State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

FOOTNOTES

FN1. Defendant's current appeal is focused on his attempt to withdraw his guilty plea.   There is clearly no merit in defendant's other arguments that he provided an inadequate factual basis for his guilty plea or that he should have received a lower sentence..  FN1. Defendant's current appeal is focused on his attempt to withdraw his guilty plea.   There is clearly no merit in defendant's other arguments that he provided an inadequate factual basis for his guilty plea or that he should have received a lower sentence.

PER CURIAM