STATE OF NEW JERSEY v. STEVE DASMAN (2014)

Defendant Steve A. Dasman appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing.   Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.

Defendant was charged in a single-count indictment with third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12–1b(5)(h), stemming from a physical altercation with a corrections officer while an inmate at Mid–State Correctional Facility.   Defendant having rejected the State's earlier plea offers, including one of three hundred and sixty-four days in the county jail, the judge set a pre-trial conference and plea cut-off date.   See R. 3:9–3(g).  Defendant rejected the State's final plea offer and the case was scheduled for trial.

Following jury selection and a Sands–Brunson ¹ hearing, in which the judge determined that defendant's prior convictions would be admissible if he chose to testify, defendant advised the court that he wished to enter a plea.   Judge Covert advised defendant that he would have to enter an open plea to third-degree aggravated assault for which he would face a maximum penalty of five years in State Prison, two and a half years to be served before he could become eligible for parole.   The judge asked defendant whether he understood “the maximum term that you face” and “that you may get the maximum term;  you understand that, correct?”   Defendant advised the judge that he understood.   Following an extended plea colloquy, the judge accepted defendant's guilty plea.

At sentencing, approximately two months later, the State sought the maximum term.   After hearing the State's presentation, defendant advised the judge that he wished to withdraw his plea.   Defendant told the judge he only agreed to plead guilty because his lawyer told him he would receive a flat sentence.   Defendant said “I really want to go to trial because I didn't do anything.”   He explained that he “was just afraid to go to trial because my attorney told me not to on the day of trial.”

The judge denied defense counsel's request for an adjournment to brief the motion to withdraw the plea and addressed the motion on the record.   Addressing each of the Slater ² factors, the judge found that defendant was not asserting a colorable claim of innocence;  defendant's claimed basis for withdrawal was belied by the proceedings on the plea in which the court had carefully explained defendant's exposure;  defendant entered an open plea after jury selection “with full knowledge and understanding of the consequences”;  and, although withdrawal would not likely result in unfair prejudice to the State, it was not in the interest of justice to allow withdrawal of the plea under the circumstances after jury selection.   See Slater, supra, 198 N.J. at 158–162.   After denying defendant's motion to withdraw his plea, the judge proceeded with sentencing.

Defendant's counsel argued that the State's reliance on aggravating factor six, N.J.S.A. 2C:44–1a(6), the seriousness and extent of defendant's prior criminal record was misplaced.   Counsel argued that defendant's record was not extensive and the more serious contacts were remote in time.   He further contended that mitigating factor eight, N.J.S.A. 2C:44–1b(8), that defendant's conduct was the result of circumstances unlikely to recur, applied because the altercation with the guard was an isolated incident spurred by a “long history” between the two and not emblematic of a general attitude of aggression toward law enforcement or corrections officers.   Defense counsel advocated that the court impose a flat three-year sentence to run concurrent with the sentence defendant was then serving for a violation of parole supervision.

Following a comprehensive statement on the record explaining the choice of sentencing factors and the weight she accorded to each, the judge sentenced defendant to five years with a two and a half-year period of parole ineligibility to run concurrently to the sentence he was then serving.   Defendant did not file a direct appeal but moved pro se for reconsideration of the sentence, which the judge denied.

Defendant filed a timely petition for PCR alleging that his counsel was ineffective for misadvising him that he would receive a flat three-year sentence and failing to effectively advocate on his behalf on the motion to withdraw his plea and at sentencing.   Defendant contended that counsel's derelictions required that he be allowed to retract his guilty plea.   Judge Covert appointed counsel for defendant and heard argument on the petition.

In a comprehensive written opinion, the judge denied the petition on the basis that defendant had failed to establish a prima facie claim for relief.   See State v. Preciose, 129 N.J. 451, 462–64 (1992).   Specifically, the judge found nothing in the record to support defendant's claim that defendant's counsel told him he would receive a flat three-year sentence.   There was nothing to show that the State ever offered a flat three-year term and the plea transcript confirms that both defense counsel and the court advised defendant that he faced the maximum term of five years with two and a half years of parole ineligibility.

The judge further rejected defendant's claim that his counsel had been ineffective at sentencing by failing to argue additional mitigating factors.   The judge found the only evidence to support such factors was defendant's own certification prepared after his conviction and two unsworn letters written several years later by two other inmates.   The judge found that not only were the letters untimely, they contradicted one another as well as the statements of the victim and another corrections officer who witnessed the assault.   The judge further found that counsel had not been ineffective in connection with the motion to withdraw the plea.   The judge noted that she had denied counsel's request for an adjournment to allow him to brief the motion and addressed defendant directly to learn his reasons for wishing to withdraw his plea.

Finally, the judge found that even assuming for purposes of argument that defendant could make out ineffective assistance under the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), he could not show that the outcome would have been different.   The judge found that defendant could not show that he would have taken an offer of a flat three-year term, “particularly as Defendant had already refused the State's offer of 364 days in the Burlington County Jail.” The judge found she would have rejected additional mitigating factors as without support in the record and, after again weighing the Slater factors, determined that defendant was not entitled to withdraw his plea.

Defendant presents the following argument on appeal:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. The Prevailing Legal Principles

Regarding Claims Of Ineffective

Assistance Of Counsel, Evidentiary

Hearings And Petitions For Post[-]

Conviction Relief.

B. Trial Counsel Rendered Ineffective

Legal Representation By Giving

Defendant Inaccurate Information

About the Consequences Of His Guilty

Plea.

C. Trial Counsel Rendered Ineffective

Legal Representation By Virtue Of

His Failure To Present All Mitigating

Factors At Sentencing On Behalf Of

Defendant.

D. Defendant Is Entitled To A Remand To

The Trial Court To Afford Him An

Evidentiary Hearing To Determine The

Merits Of His Contention That He Was

Denied The Effective Assistance Of

Trial Counsel.

After careful review of the record, we reject these arguments and affirm the denial of defendant's petition and his request for an evidentiary hearing substantially for the reasons set forth in Judge Covert's April 23, 2012 written opinion.

Affirmed.

FOOTNOTES

FN1. State v. Sands, 76 N.J. 127 (1978);  State v. Brunson, 132 N.J. 377 (1993)..  FN1. State v. Sands, 76 N.J. 127 (1978);  State v. Brunson, 132 N.J. 377 (1993).

FN2. State v. Slater, 198 N.J. 145 (2009)..  FN2. State v. Slater, 198 N.J. 145 (2009).

PER CURIAM