This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
PER CURIAM.
Defendant appeals a Law Division order denying post-conviction relief (PCR). We affirm.
On June 26, 2012, defendant entered a guilty plea to second-degree aggravated assault,
Defendant decided to plead guilty after being informed that his co-defendant had pled guilty, and agreed to testify at trial. The court rejected his factual basis on his first attempt, however, because defendant's statements, which included describing kicking and "stomping" the victim while he lay prostate on the ground, raised the issue of self-defense. Defendant said he believed the victim was carrying a handgun.
After rejecting the plea, the court proceeded to address defendant's
At that point, the court was advised by defendant's attorney that his client wished to address the judge. The judge responded:
The judge then asked defendant if he wanted to again attempt to establish a factual basis for the guilty plea, to which he responded "[y]es." The judge next asked whether it was "a decision you're making of your own free will[.]" The defendant responded, "[y]es."
This time, defendant acknowledged that he continued to punch and kick the victim even after he lay defenseless on the ground. As defendant put it, he "went a little overboard." Defendant admitted that he could have walked away and acknowledged that he actually did so. He returned a few seconds later, once more punching and kicking the victim as he lay on the ground. Defendant agreed that the assault continued even after the victim was clearly no longer a threat. This time, the judge found defendant's sworn statements satisfied the statutory elements, and that the statements did not raise the issue of self-defense.
Defendant was given a sentencing date of September 14, 2012, and was warned regarding his obligation to return to court.
Defendant failed to appear. His attorney represented to the court that defendant was in North Carolina, where his daughter was undergoing surgery. Counsel further stated that he asked defendant to document the claim, and that defendant had agreed to do so. The State nonetheless requested a bench warrant, indicating that if provided appropriate documentation, it would request rescission of the bench warrant.
Defendant was apprehended in Georgia on the bench warrant. On April 28, 2014, new counsel filed an application to withdraw defendant's guilty plea on the grounds that the factual basis was inadequate as it raised the issue of self-defense. The trial judge reminded counsel of the fact that the video from the liquor store in which the incident occurred depicted defendant and his co-defendant pummeling and stomping the victim as he lay on the ground. Nonetheless, counsel argued that defendant felt he was being threatened by the victim; that he was only trying to defend himself; and that at worst, defendant was guilty of a simple assault.
In opposition to the motion, the prosecutor played the video in court. After watching it, the judge observed that the victim was leaving the liquor store when defendant walked quickly in front of him and struck him in the face, and that he continued to attack. After that initial blow, the victim lay on the ground motionless while defendant repeatedly kicked him in the head.
Referring to
The judge who decided the PCR motion, who was also the judge who accepted defendant's plea and sentenced him, remembered defendant stating that his guilty plea was being made voluntarily.
During the sentencing proceeding that followed denial of the motion to withdraw the guilty plea, defendant told the judge that he did not return to court because his mother, who also spoke at the sentencing and corroborated this narrative, told him she had checked his case on a website and that it showed his case had been dismissed. Defendant also said that his trial attorney compelled him to enter the guilty plea, and that he was not provided a full packet of discovery although he had seen the video. He denied that the victim suffered severe injuries because of anything he did, insisting that the victim was put into a drug-induced coma only to treat minor scrapes and injuries.
When he sentenced defendant, the judge detailed the victim's injuries — which included bleeding to the brain and multiple facial fractures, including a fracture of the cribrifon plate, which caused air to enter into the victim's brain cavity. He was in a medically induced coma on a ventilator for a period of time and was diagnosed with traumatic brain injury resulting exclusively from the assault. Defendant interrupted the judge, insisting that the victim's brain injury was not referred to in the discovery he had been given.
At sentencing, the prosecutor recalled waiting for defendant to appear on September 14, 2012, the original sentencing date, with defendant's first attorney. As they waited, defense counsel told the prosecutor that his client had called and said that he was not coming. After the call, counsel put on the record defendant's first reason for his non-appearance, his daughter's alleged surgery. The prosecutor thus argued that it was clear defendant simply decided to take his chances as a fugitive. He urged the court to find at least aggravating factors two, three, six, and nine.
The judge imposed the ten-year prison sentence as permitted by the terms of the plea agreement. He found aggravating factors two, three, six, and nine and no mitigating factors.
Defendant appealed his sentence by way of the excessive sentence oral argument calendar.
In his pro se certification submitted in support of his original petition for PCR, defendant alleged that his attorney failed to properly investigate, only "representing defendant one time [which] was the day he plead guilty[;]" failed to provide him with discovery; failed to properly communicate the consequences were he to take the matter to trial; and failed to explain to the court that the reason defendant failed to appear on the date of trial was that his daughter was in the hospital awaiting surgery. He further certified that his trial attorney "cajoled" him into pleading guilty.
When he denied defendant's PCR application, the judge began by reiterating his recollection of the liquor store video that captured the incident and the grave injuries suffered by the victim. The judge also recalled in detail the process that ultimately led to defendant's sentence. He concluded that
Defendant raises the following points for our consideration:
In order to establish a prima facie claim of ineffective assistance of counsel at trial, a defendant must, pursuant to the familiar standard, demonstrate that counsel made errors "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment."
Additionally, a defendant "must show that the deficient performance prejudiced the defense."
The standard is essentially the same with regard to the entry of guilty pleas. A defendant must establish first that the representation was deficient. Secondly, a defendant must demonstrate that, but for counsel's errors, defendant would not have entered into a plea agreement with the State and would have proceeded to trial.
In this case, defendant's substantive points two through five, are based on uncorroborated bare assertions that conflict with the record made available to us. He alleges, for example, that his attorney only met with him on the day that the plea was entered. In light of the fact that the matter was listed for trial the day the
Furthermore, it was defendant who initiated the entry of his guilty plea, not his attorney.
Defendant's argument regarding the allegedly insufficient factual basis, with which we do not agree on the merits, is barred by
Finally, defendant under the authority of
Ultimately, this was an extended term eligible defendant, whose unprovoked attack was captured on film, and resulted in a serious brain injury inflicted upon a total stranger.
Affirmed.