STATE OF NEW JERSEY VS. ADEL MIKHAEIL (08-09-0232, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-2381-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ADEL MIKHAEIL, a/k/a
ADAL MIKHAAIL,
Defendant-Appellant.
_____________________________
Submitted May 2, 2018 – Decided January 31, 2019
Before Judges Fuentes, Koblitz and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 08-09-0232.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lee March Grayson, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Lila B. Leonard, Deputy Attorney General,
of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant Adel Mikhaeil appeals from the order of the Criminal Part
denying his post-conviction relief (PCR) petition. We affirm.
At all times relevant to this case, defendant worked as a bounty hunter.
On September 29, 2008, a State Grand Jury returned a multicount indictment
against defendant that charged him with multiple counts of second degree
conspiracy to commit official misconduct, N.J.S.A. 2C:3-2, second degree
offering an unlawful benefit to a public servant for official behavior , N.J.S.A.
2C:27-11, third degree theft by deception, N.J.S.A. 2C:20-4, third degree
commercial bribery, N.J.S.A. 2C:21-10, two counts of fourth degree falsifying
records, N.J.S.A. 2C:21-4(a), second degree financial facilitation of criminal
activity, N.J.S.A. 2C:21-27, third degree witness tampering, N.J.S.A. 2C:28-
5(a), third degree hindering apprehension, N.J.S.A. 2C:29-3, and fourth degree
fabricating physical evidence, N.J.S.A. 2C:28-6(2).
On September 19, 2012, defendant pled guilty to all of the counts in the
indictment without an agreement with the State with respect to the terms o f his
sentence. On February 26, 2013, the court granted defendant's application to
withdraw his guilty plea and stand trial. On December 26, 2013, the court
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granted defendant's application to discharge his attorney and proceed pro se.
However, the court appointed his previous attorney to act as standby counsel
throughout the trial. Jury selection began on January 5, 2015. The trial judge
denied defendant's motion seeking the judge's recusal, the recusal of the Deputy
Attorney General assigned to represent the State, and a motion to stay the trial.
On January 7, 2015, defendant entered into a negotiated plea agreement
with the State, the terms of which were memorialized in a letter from the Deputy
Attorney General dated December 15, 2014. Defendant thus pled guilty to one
count of second degree conspiracy to commit official misconduct, two counts of
second degree official misconduct, one count of second degree offering an
unlawful benefit to a public servant for official behavior, third degree theft by
deception, two counts of third degree commercial bribery, two counts of fourth
degree falsifying or tampering with records, third degree hindering
apprehension, and fourth degree tampering with evidence.
With respect to sentencing, the December 15, 2014 plea agreement letter
provided in relevant part:
[T]he State shall . . . recommend that the defendant be
sentenced to a term in State Prison within the second
degree range, between five (5) and ten (10) years, with
no period of parole ineligibility, with the sentences for
each of the charges to which defendant has pleaded
guilty to run concurrently.
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At sentencing, both the defendant and the State shall be
free to argue for whatever term each deems appropriate,
provided the recommended sentence falls within the
agreed upon range of between five (5) and ten (10)
years in State Prison.
The State shall also agree not to object to the
defendant's admission into the Intensive Supervision
Program ("ISP"), should he be deemed a suitable
candidate for ISP, provided that the defendant, at the
time of his release, has served at least six (6) months of
his State prison sentence, including any jail time credit
to which the defendant is entitled, as determined by the
[c]ourt. Nothing in this plea agreement shall be deemed
to prevent or preclude defendant from submitting his
application for ISP or beginning the ISP application
process before serving six (6) months of his State
[P]rison sentence term, including any jail credit to
which the defendant may be entitled.
Defendant appeared for sentencing on March 27, 2015. Before imposing
sentence, the judge heard and denied defendant's motion to withdraw his guilty
plea. The judge thereafter sentenced defendant in accordance with the plea
agreement to an aggregate term of six years imprisonment, without any period
of parole ineligibility. The judge found aggravating factors N.J.S.A. 2C:44-1(a)
(3), the risk defendant will commit another offense, and N.J.S.A. 2C:44-1(a) (9),
the need to deter this defendant and others from violating the law; the judge also
found mitigating factors N.J.S.A. 2C:44-1(b) (2), defendant did not contemplate
his conduct would or could cause serious harm, and N.J.S.A. 2C:44-1(b) (7),
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defendant did not have any history of criminal activity as an adult or delinquency
as a minor. Defendant was fifty years old at the time of sentencing.
Defendant appealed the sentence through the summary process provided
under Rule 2:9-11. While the appeal was pending, the ISP Screening Board
notified defendant in a letter dated August 18, 2015 that he was not eligible due
to the (1) serious nature of the of offenses; (2) defendant's "needs exceeded the
scope and resources of the program"; and (3) "[a]bsence of sincerity and
motivation needed to carry out programmatic obligations." Thereafter, this
court affirmed defendant's sentence. State v. Adel Mikaeil, Docket No. A-4245-
14 (App. Div. October 28, 2015).
On July 1, 2016, defendant filed this PCR petition pro se claiming the
denial of his ISP application as a basis for relief. In a certification submitted in
support of the petition, defendant stated that at the time he pled guilty he "had
already been assured by my standby attorney I was a good candidate for ISP and
that I would be admitted to the program if the judge agreed to it." Throughout
the certification, defendant repeatedly asserts that: "No one, including my
standby counsel, ever informed me that my offenses could be considered too
serious for admission to ISP."
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Judge Thomas J. Critchley, Jr., assigned an attorney to represent
defendant in the prosecution of the PCR petition. PCR counsel submitted a brief
arguing defendant was denied the effective assistance of counsel when his
standby attorney advised him that he was to be admitted into ISP provided the
trial judge did not object. PCR counsel also argued that defendant "must be
released from custody" as a matter of fundamental fairness. Judge Critchley
heard oral argument from counsel on September 6, 2016. Judge Critchley denied
defendant's petition in an order dated November 3, 2016. The order also
included his reasons for denying defendant's petition. Judge Critchley stated:
The factual assertion underlying [d]efendant's claim is
that he was "guaranteed" at the time of his guilty plea
that he would be accepted into the Intensive
Supervision on Parole program (ISP), and that the
subsequent failure of that program to accept him
entitled to him to withdraw his guilty plea.
The [d]efendant's claim of ineffective assistance of
counsel must be considered in the light of the fact that
at the time of the plea he was voluntarily proceeding
pro se. The trial court conducted a comprehensive
hearing on this issue on December 22, 2014, and found
that [d]efendant's decision to affirmatively waive his
right to counsel and exercise instead his right to
represent himself was made "knowingly, intelligently,
and voluntarily." (The [c]ourt further determined that
[d]efendant's previously court-appointed counsel
would continue to serve in the role of "standby
counsel.")
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As a matter of law, by affirmatively waiving his right
to counsel and instead representing himself,
[d]efendant effectively relinquished any right to seek
post-conviction relief for alleged "ineffective
assistance of counsel." State v. King, 210 N.J. 2, 18
(2012) . . . [.]
Judge Critchley also found that defendant's "assertions that he was guaranteed
that he would be admitted into ISP after serving 6 months are not supported by
the comprehensive record made in this case."
Against this factual backdrop, defendant appeals raising the following
argument.
POINT I
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT STANDBY
COUNSEL MISLED HIM INTO BELIEVING THAT
HE WAS AN IDEAL CANDIDATE FOR THE
INTENSIVE SUPERVISION PROGRAM (ISP) AND
FAILED TO ADEQUATELY ADVISE HIM THAT
THE SERIOUSNESS OF HIS CRIMES AND OTHER
FACTORS WOULD PRECLUDE HIM FROM
ADMISSION INTO ISP.
POINT II
UNDER THE FUNDAMENTAL FAIRNESS
DOCTRINE, THE PCR COURT ERRED BY NOT
RELEASING THE DEFENDANT FROM CUSTODY
IN ORDER TO FULFILL HIS REASONABLE
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EXPECTATIONS AT THE TIME OF THE PLEA
HEARING OR, ALTERNATIVELY, ALLOWING
THE DEFENDANT TO WITHDRAW HIS GUILTY
PLEAS.
POINT III
THE PCR COURT ERRED BY NOT GRANTING AN
EVIDENTIARY HEARING.
We reject these arguments and affirm substantially for the reasons
expressed by Judge Critchley in his well-reasoned order-opinion dated
November 3, 2016. Defendant knowingly waived his right to counsel. As the
Supreme Court reaffirmed in King, a defendant's decision to represent himself
in a criminal proceeding "is about respecting a defendant's capacity to make
choices for himself, whether to his benefit or to his detriment." 210 N.J. at 17(quoting State v. Reddish, 181 N.J. 553, 585-86 (2004)).
Affirmed.
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