STATE OF NEW JERSEY VS. EDWARD O. MCKINNEY (12-03-0170, SALEM COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1256-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD O. MCKINNEY,
Defendant-Appellant.
Submitted October 24, 2018 – Decided December 18, 2018
Before Judges Koblitz and Currier.
On appeal from Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 12-03-0170.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel;
William P. Welaj, on the brief).
John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David M. Galemba, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Edward McKinney appeals from the denial of his petition for
post-conviction relief (PCR), contending trial counsel 1 were ineffective, and the
PCR court improperly denied his petition without an evidentiary hearing.
Because we conclude an evidentiary hearing is appropriate on the sole issue of
whether trial counsel were ineffective during the plea stage of the proceedings,
we reverse.
During the pre-trial conference on July 13, 2012, all parties agreed the
plea offer was a ten-year prison term with an eighty-five percent period of parole
disqualification. The judge discussed with defendant, that if he rejected the plea
and was found guilty of one of the first-degree offenses, he could receive an
extended term sentence between ten years and life in prison. Defendant stated
he understood the potential consequences of a conviction, but wished to proceed
with the trial scheduled for August 13, 2012. He signed the pretrial
memorandum on the same day.
The following week, on July 20, defense counsel wrote to defendant,
answering questions defendant had raised in a phone call to her office. At the
end of the letter, she advised:
1
Defendant was initially represented by a staff attorney from the Office of the
Public Defender. After defendant complained, the Office reassigned his case to
a private pool attorney. See N.J.S.A. 2A:158A-7(c) to (d).
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I have engaged the prosecutor in further plea
negotiations based on what I believe to be witness
availability issues and inappropriate comments made
during his colloquy with the grand jury. He indicated
that he would accept a plea to a second-degree robbery
in exchange for a sentence of [five] years, [eighty-five
percent]. I know that you may not be interested, but I
am obligated to advise you of any new plea offers.
On December 7, 2012, defendant wrote to counsel stating, "My last plea
offer was [five] years, [eighty-five present] but the judge wouldn't allow me to
plead out, for reasons being I don’t know. But I was more than willing to accept
his plea and to get the mess over with." Defendant reminded counsel he had
been in jail for a year awaiting trial, and closed his letter by requesting credit
for his current jail time and a plea agreement including a prison term of three
years with no parole ineligibility period.
The Public Defender's office assigned defendant new counsel in January
2013, because of an alleged conflict, but the file did not reflect any action taken
regarding the reduced plea offer. On the first day of trial, March 19, 2013, the
new defense counsel advised the court that defendant had attempted to accept
the plea offer of five years with eighty-five percent parole disqualifier but "was
not allowed by the [c]ourt because [the case] was on the trial list." Counsel
further stated:
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Having not been directly involved and trying to read
through the case file, it's not really clearly defined, as
to what the case was, but Mr. McKinney has informed
me on several occasions that he still would like to take
that deal and would like me to present that to the [c]ourt
today.
So that's what I'm doing, is to inform you that it is
his request for this [c]ourt to allow him to still enter a
plea of guilty to the . . . [r]obbery charge.
In response, the trial judge referred to the pre-trial memorandum
containing the higher plea offer. He stated: "So I see no change in circumstances
and I certainly don’t see any change in circumstances that would allow me to
enter a plea that was less than what was offered to him on the day we put this
matter on the trial list." The judge explained that, even if a subsequent reduced
offer was made, it was not offered "with the consent of the [c]ourt and the plea
cutoff rule would have prohibited that offer, absent a material change in
circumstances."
The case proceeded to trial, and defendant was found guilty of two counts
of first-degree robbery, N.J.S.A. 2C:15-1, one count of third-degree terroristic
threats, N.J.S.A. 2C:12-3(b), and fourth-degree possession of an imitation
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e). He was also found guilty
of the lesser-included disorderly persons offense of harassment, N.J.S.A. 2C:33-
4.
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Defendant was sentenced to an extended forty-five-year prison term on
the first count with an eighty-five percent period of parole disqualification and
concurrent terms on the remaining counts. This court affirmed defendant's
convictions, but remanded for resentencing. State v. McKinney, No. A-5379-
12 (App. Div. Nov. 30, 2015) (slip op at 2, 14). On remand, the trial court
imposed an aggregate twenty-year prison term with an eighty-five percent parole
disqualifier. We affirmed the sentence. State v. McKinney, No. A-2235-15
(App. Div. May 4, 2016).
After defendant filed a pro se petition for PCR, he was assigned counsel
who filed a supplemental brief. In his supporting certification, defendant stated
he "never wished to proceed to trial" and "wanted [his] attorney to negotiate the
best offer possible." He advised that counsel
did ultimately negotiate an offer which I was willing to
accept. . . . However, I was then told that the [c]ourt
indicated it was too late for me to plead to that offer.
. . . I repeatedly asked my attorney to fight for the
[c]ourt to allow me to enter a guilty plea, but I did not
receive any updates until we were about to begin trial
and the judge refused to allow me to plead.
Defendant included several other instances where he believed trial counsel were
ineffective.
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After oral argument, the PCR court denied defendant's petition without an
evidentiary hearing in a written decision issued on September 19, 2017. The
judge found defendant had not established a prima facie case of ineffective
counsel and an evidentiary hearing was not warranted.
Defendant presents the following issues on appeal:
POINT I:
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST[-]
CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
EITHER TRIAL COUNSEL DURING THE PLEA
STAGE OF THE PROCEEDINGS.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO MAKE A MOTION SEEKING TO
SUPPRESS THE STATEMENT OBTAINED BY
LAW ENFORCEMENT FROM THE DEFENDANT.
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D. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO OBJECT TO TESTIMONY ELICITED
BY THE STATE FROM TWO POLICE OFFICERS
INFERENTIALLY CONNECTING THE
DEFENDANT WITH PRIOR CRIMINAL CONDUCT.
POINT II:
THE POST-CONVICTION RELIEF COURT ERRED
IN REJECTING THE DEFENDANT'S PETITION, IN
PART, ON PROCEDURAL GROUNDS PURSUANT
TO RULE 3:22-4.
Where the PCR court has not held an evidentiary hearing, a de novo
review is appropriate. State v. Harris, 181 N.J. 391, 420-21 (2004).
All of defendant's claims allege the ineffective assistance of counsel. The
standard for determining whether counsel's performance was ineffective under
the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S.
668 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42(1987). In order to prevail on an ineffective assistance of counsel claim,
defendant must meet the two-prong test establishing: (l) counsel's performance
was deficient and he or she made errors so egregious that counsel was not
functioning effectively as guaranteed by the Sixth Amendment; and (2) the
defect in performance prejudiced defendant's rights to a fair trial such that there
exists a "reasonable probability that, but for counsel's unprofessional errors, the
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result of the proceeding would have been different." Strickland, 466 U.S. at
687, 694.
A defendant shall be entitled to an evidentiary
hearing only upon the establishment of a prima facie
case in support of post-conviction relief . . . [t]o
establish a prima facie case, defendant must demonstrate
a reasonable likelihood that his or her claim . . . will
ultimately succeed on the merits.
R. 3:22-10(b).
However, merely raising a claim for PCR does not entitle defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999).
Where "defendant's allegations are too vague, conclusory or speculative," the
court shall not grant an evidentiary hearing. R. 3:22-10(e)(2); see also Cummings,
321 N.J. Super. at 170 (reasoning that "bald assertions" of ineffective assistance are
insufficient to sustain a claim for PCR or warrant an evidentiary hearing). Rather,
"defendant must allege specific facts and evidence supporting his allegations" for
the court to grant an evidentiary hearing. State v. Porter, 216 N.J. 343, 355 (2013).
Defendant argues both his trial counsel were ineffective during the plea stage
of the proceedings, in their failure to file a motion to suppress his statement, and in
not objecting to certain testimony elicited at trial. We are satisfied defendant failed
to establish a prima facie case of ineffective assistance of counsel regarding his
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contentions that counsel failed to file a Miranda2 motion and object to certain
testimony. We affirm those rulings substantially for the reasons expressed by the
PCR judge in her September 19, 2017 written decision.
We conclude differently in our review of defendant's contention of error in
the dismissal of his ineffective assistance of counsel claim without an evidentiary
hearing in regard to the plea proceedings.
In Lafler v. Cooper, 566 U.S. 156, 162-63 (2012), the United States Supreme
Court extended the Strickland test to challenges of guilty pleas based on ineffective
assistance of counsel. "If a plea bargain has been offered, a defendant has the right
to effective assistance of counsel in considering whether to accept it." Id. at 168.
To establish prejudice, a defendant must show "there is a reasonable probability that
. . . the defendant would have accepted the plea[,] . . . that the court would have
accepted its terms, and that the conviction or sentence, . . . under the offer's terms
would have been less severe" than that imposed after trial. Id. at 164.
Here, defendant has shown, through written correspondence, that the State
extended a significantly reduced plea offer within a week of the plea cut-off. He
also indicated, in that correspondence and his PCR brief, that he would have
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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accepted the reduced plea. Instead, defendant proceeded to trial, where he received
a sentence nine times more severe than under the revised plea agreement.3
Therefore, defendant has demonstrated "but for counsel's unprofessional errors, the
result of the proceeding would have been different. Strickland, 466 U.S. at 687.
Because we find defendant has met the Strickland/Fritz test in demonstrating
with "reasonable probability" that the result would have been different if his
attorney had contacted the court regarding the reduced plea offer, we determine a
remand is appropriate for an evidentiary hearing. Without a hearing, we cannot
know why the court was not immediately apprised of the new offer. With the
reduced plea so near in time to the pretrial memorandum, it was incumbent on both
trial counsel to seek an exception to the plea cut-off and assert a change in material
circumstances pursuant to Rule 3:9-3(g). On remand, an evidentiary hearing shall
be conducted solely to determine whether defense counsel were ineffective in
failing to take the appropriate action of alerting the court to defendant's desire to
accept the significantly reduced plea offer.
Reversed and remanded. We do not retain jurisdiction.
3
The sentence ultimately imposed upon remand was four times more severe
than the revised plea offer.
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