STATE OF NEW JERSEY VS. RASOOL MCCRIMMON (05-01-0054, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3136-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASOOL MCCRIMMON, a/k/a
RASOOL W. MCCRIMMON,
DAHEEM MCWRITTE,
ANTHONY M. WOODS, and
OOKIE,
Defendant-Appellant.
________________________
Submitted April 3, 2019 – Decided May 1, 2019
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 05-01-0054.
Rasool McCrimmon, appellant pro se.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Lucille M.
Rosano, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Rasool McCrimmon appeals from a November 30, 2017 order
denying his third post-conviction relief (PCR) petition without an evidentiary
hearing. We affirm.
In 2007, defendant was convicted by a jury of first-degree purposeful and
knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2), third-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b), and second-degree possession of
a weapon, N.J.S.A. 2C:39-4(a), and sentenced to an aggregate fifty-year
sentence subject to the requirements of the No Early Release Act, N.J.S.A.
2C:43-7.2. We affirmed defendant's conviction and sentence on direct appeal,
State v. McCrimmon (McCrimmon I), No. A-0477-07 (App. Div. Aug. 18,
2011), and the Supreme Court denied defendant's petition for certification, State
v. McCrimmon, 209 N.J. 232 (2012).
Defendant filed a PCR petition in 2012, asserting in part that his trial
counsel was ineffective by failing to inform him that he was exposed to a
minimum sentence of thirty years without parole if convicted of murder at trial.
Defendant asserted that had he been advised of his sentencing exposure, he
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would have accepted the State's seven-year plea offer and not proceeded with
the trial.1
The PCR court conducted an evidentiary hearing. Defendant's trial
counsel testified he discussed the State's plea offer with defendant and, although
he did not have a specific recollection of discussing with defendant the minimum
sentence that could be imposed if defendant was convicted at trial, he could not
"conceive of" not telling defendant about his minimum sentencing exposure and
"at some point" he would have explained the exposure to defendant. The court
found trial counsel's testimony credible and that trial counsel explained the
minimum sentencing exposure to defendant prior to defendant's rejection of the
plea offer. The court entered an order denying defendant's PCR petition, and
defendant appealed.
On defendant's direct appeal from the PCR court's order, we found "the
record support[ed] the PCR court's conclusion that trial counsel advised
defendant of his minimum sentencing exposure if convicted at trial," noted the
PCR court credited trial counsel's testimony to that effect and deferred to the
court's factual findings. State v. McCrimmon (McCrimmon II), No. A-5818-13
1
Defendant asserts that the State's plea offer was communicated after the
commencement of the trial.
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(App. Div. Feb. 16, 2017) (slip op. at 11-12). We concluded defendant neither
demonstrated his trial counsel's performance was deficient nor that "if
[defendant] had been advised of his minimum sentencing exposure, there is a
reasonable probability he would have accepted the State's plea offer." Id. at 13.
We affirmed the PCR court's denial of the petition, id. at 25, and the Supreme
Court denied defendant's petition for certification, State v. McCrimmon, 233
N.J. 119 (2017).
On April 2, 2015, defendant filed a second PCR petition. Defendant
claimed that his trial counsel was ineffective by failing to investigate a purported
key witness. In a July 16, 2015 order, the court denied the petition without an
evidentiary hearing. Defendant did not appeal from the court's denial of his
second PCR petition.
On November 30, 2016, defendant filed his third PCR petition in which
he reprised his assertion that his trial counsel was ineffective by failing to advise
him of his minimum sentencing exposure if convicted at trial prior to his
decision to reject the State's plea offer and proceed to trial. In support of the
petition, defendant presented a March 22, 2016 affidavit from his trial counsel
stating "[t]here is a distinct possibility that [he] did not advise [defendant] that
if the trial resulted in a conviction, he would be facing [thirty] years to life in
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prison." Defendant argued trial counsel's assertion that there was a possibility
he did not advise defendant about his minimum sentencing exposure constituted
a newly discovered factual predicate for the filing of a third PCR petition under
Rule 3:22-4(b)(2)(B).
In a detailed November 30, 2017 written decision and order, the PCR court
denied the petition. The court explained that Rule 3:22-4(b) requires the
dismissal of a second or subsequent PCR petition unless the defendant
demonstrates that it is timely under Rule 3:22-12(a)(2), and, in pertinent part, 2
alleges on its face:
[T]hat the factual predicate for the relief sought could
not have been discovered earlier through the exercise
of reasonable diligence, and the facts underlying the
ground for relief, if proven and viewed in light of the
evidence as a whole, would raise a reasonable
probability that the relief sought would be granted.
[R. 3:22-4(b)(2)(B).]
The court also noted that the pertinent portion of Rule 3:22-12(a)(2) provides
that second or subsequent PCR petitions may not be filed more than one year
after "the date on which the factual predicate for the relief sought was
2
Defendant relies solely on subsection (B) of Rule 3:22-12(a)(2) to support the
filing of his third PCR petition.
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discovered, if that factual predicate could not have been discovered earlier
through the exercise of reasonable diligence." R. 3:22-12(a)(2)(B).
The court found defendant's third PCR petition was not timely filed. R.
3:22-12(a)(2)(B). The court noted that the factual predicate supporting the
petition is trial counsel's assertion that there is a possibility he did not discuss
with defendant his minimum sentencing exposure. The court explained,
however, that trial counsel's discussions with defendant concerning his
minimum sentencing exposure were addressed during counsel's testimony at the
October 25, 2013 evidentiary hearing on the first PCR petition, the PCR court
on the first petition accepted trial counsel's testimony he would have discussed
the sentencing exposure with defendant "as it was his practice to do so," and
defendant failed to demonstrate that the newly-minted factual predicate "could
not have been discovered earlier through the exercise of reasonable diligence."
The court noted that the identical issue—what defendant's trial counsel told him
about his sentencing exposure—was the subject of the evidentiary hearing on
his first PCR petition and that trial counsel's certification does not raise any
issues that were not previously addressed during the proceedings on the first
PCR petition.
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The court further found that even if the petition was timely, it is barred
under Rule 3:22-4(b)(2)(B) because defendant failed to demonstrate the factual
predicate could not have been discovered earlier through the exercise of
reasonable diligence, and the factual predicate, when considered in light of the
evidence as a whole, does not raise a reasonable probability that the relief sought
would be granted. The court noted that trial counsel's certification also states
that there were never any meaningful settlement negotiations with the State
because it was counsel and defendant's view that the State's case was weak
because it was dependent on a single witness who they viewed as not credible.
Defendant appealed the PCR court's order denying the petition.
Defendant offers the following arguments for our consideration:
POINT I
THE PCR JUDGE ERRED BY DENYING
PETITIONER'S APPLICATION FOR POST
CONVICTION RELIEF UNDER [RULE] 3:22-
12(a)(2).
POINT II
PCR COURT ERRED WHEN HE DENIED THE
PETITION UNDER [RULE] 3:22-4(B)(2)(B).
Where, as here, the court denied defendant's PCR without an evidentiary
hearing, we "conduct a de novo review" of the court's order. State v. Jackson,
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454 N.J. Super. 284, 291 (App. Div.) (quoting State v. Harris, 181 N.J. 391, 421
(2004)), certif. denied, 236 N.J. 25 (2018). We have conducted that review
here, considered defendant's arguments in light of the record and find they are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2). We affirm substantially for the reasons set forth in the court's written
decision and order, and add only the following comments.
Defendant's trial counsel's certification, which provides the singular
purported factual predicate supporting the third PCR petition, does not
contradict the testimony he offered during the October 2013 evidentiary hearing
on the first PCR petition or assert any new facts that were not considered and
addressed by the court during the October 2013 evidentiary hearing. Trial
counsel's March 2016 certification allows only a possibility he did not discuss
with defendant his sentencing exposure. However, trial counsel acknowledged
at the October 2013 hearing he had no specific recollection of informing
defendant of his minimum sentencing exposure if he was convicted at trial and,
thus, acknowledged at that time there was a "possibility" he did not advise
defendant about his sentencing exposure. But following the evidentiary hearing,
the PCR court found credible trial counsel's other testimony he could not
conceive of not advising defendant of his sentencing exposure and he would
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have done so at some point. We affirmed the court's findings on defendant's
direct appeal from the denial of his first PCR petition. McCrimmon II, slip op.
at 11-12.
The factual predicate supporting the third PCR petition was either known
to defendant or could have been learned through the exercise of reasonable
diligence no later than during the October 2013 evidentiary hearing on the first
PCR petition. As correctly determined by the PCR court, defendants' third PCR
petition was therefore time barred under Rule 3:22-12(a)(2)(B). See Jackson,
454 N.J. Super. at 292-93 (explaining that the one-year time limitation for the
filing of a second or subsequent PCR petition may not be enlarged). Moreover,
because the PCR court on defendant's first petition was aware of, but rejected,
the possibility that trial counsel did not inform defendant of his sentencing
exposure, the record wholly undermines any claim that trial counsel's newly
proffered statement raises a reasonable probability that PCR would be granted.
R. 3:22-4(b)(2)(B).
Defendant also fails to demonstrate that there is a reasonable probability
that but for his counsel's alleged failure to inform him of his sentencing
exposure, he would have accepted the State's plea offer and not proceeded with
the trial. See State v. O'Donnell, 435 N.J. Super. 351, 376 (App. Div. 2014)
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(explaining that to obtain PCR based on alleged ineffective assistance of counsel
related to entry of a plea, the defendant must present "sufficient evidence to
show 'a reasonable probability that, but for counsel's errors, [he] would not have
pleaded guilty and would have insisted on going to trial'" (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985))). Defendant further failed to demonstrate that
"had he been properly advised, it would have been rational for him to decline
the plea offer and insist on going to trial and, in fact, that he probably would
have done so[.]" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011)
(citing Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). His conclusory
assertions to that effect are insufficient to sustain his burden. See State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (holding "bald
assertions" are insufficient to sustain a defendant's burden of establishing
entitlement to PCR).
Trial counsel's certification explains that neither he nor defendant were
interested in a plea agreement because they "were of the mutual opinion that the
State's case was very weak because the only alleged eyewitness to the crime . . .
had given contradictory versions of what had occurred." Trial counsel further
states "there was no physical evidence that linked [defendant] to the murder,"
the "critical issue" at trial was the "credibility" of the eye witness whose
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"testimony was fraught with contradictions," and he "advised [defendant] that
there was a strong likelihood that he would be acquitted."
Trial counsel's certification demonstrates that based on a reasoned
assessment of the State's case, he and defendant were not interested in a plea
agreement because they shared the view defendant would be acquitted. Thus,
the certification undermines any claim it would have been rational for defendant
to have rejected the plea and proceeded with the trial, and he would have done
so. Maldon, 422 N.J. Super. at 486. The record supports the PCR court's finding
that the purported newly discovered factual predicate for defendant's third PCR
petition fails to raise a reasonable probability that PCR would be granted. See
R. 3:22-4(b)(2)(B).
Affirmed.
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