STATE OF NEW JERSEY v. ABDUL WARD (14-08-0694 AND 15-08-0553, UNION COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3078-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ABDUL WARD, a/k/a JOHN
COOK and ABDUL H. WARD,
Defendant-Appellant.
__________________________
Submitted January 24, 2022 – Decided August 4, 2022
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
14-08-0694 and 15-08-0553.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel,
on the brief).
William A. Daniel, Union County Prosecutor, attorney
for respondent (Albert Cernadas, Jr., Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Abdul Ward appeals from the denial of his petition for post-
conviction relief (PCR), contending 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.
Apparently disgruntled by the price he was charged for illegal drugs on
Berckman Street in Plainfield, defendant returned to the scene with a 9MM
semi-automatic handgun and fired eight times into a group of people milling
about in front of a convenience store. One of the bullets struck a thirty-four-
year-old man at work inside the store, killing him. He left a wife and an eight-
year-old son. Defendant fled in a car, leading police on a high-speed chase
which ended with several other people hurt, two seriously.
Indicted on charges of first-degree murder and weapons offenses — as
well as racketeering, conspiracy, distribution of CDS, aggravated assault,
eluding and several theft offenses — defendant entered a negotiated guilty plea
to aggravated manslaughter in exchange for the State's recommendation of a
twenty-eight-year prison term subject to the periods of parole ineligibility and
supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, and dismissal of the remaining charges. He reserved the right to argue for
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a lesser sentence. He resolved two other indictments by pleading guilty to
third-degree possession of CDS in exchange for a five-year-flat sentence to run
concurrent to that imposed on the aggravated manslaughter conviction.
At sentencing, the State urged the court to find aggravating factors three,
the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); five,
the substantial likelihood defendant is involved in organized criminal activity,
N.J.S.A. 2C:44-1(a)(5); six, the extent of the defendant's prior criminal record
and the seriousness of the offenses of which the defendant has been convicted ,
N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter defendant and others,
N.J.S.A. 2C:44-1(a)(9), and no mitigating factors. Defense counsel argued
against aggravating factor five but conceded there were facts in the record to
support the remaining aggravating factors the State urged. He argued certain
non-statutory mitigating factors, defendant's remorse and acceptance of
responsibility for the victim's death, should result in a twenty-seven-year
sentence, instead of the twenty-eight-year sentence negotiated.
Although rejecting application of aggravating factor five, the judge
found aggravating factors three, six and nine and no mitigating factors. The
judge concisely explained his reasoning, noting that although only "a young
man, in his early to mid-twenties," defendant had "already amassed a record
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that is shameful: He's got two prior indictables already with two parole
violations. He had two juvenile adjudications for delinquency with a violation
of probation, and four municipal convictions." Emphasizing defendant's "lack
of success in prior diversionary programs," the judge declared defendant "a
serial offender." The judge also noted defendant had "multiple prior
adjudications for drug related offenses" similar to the one on which he was
being sentenced, further speaking to the likelihood of re-offense.
As to aggravating factor nine, the judge found "the need for deterrence
couldn't be more clear," because "[n]othing has worked so far with regard to
[defendant], not [the] juvenile adjudications, not an opportunity to be on
probation as a juvenile, which he flouted, and not the [punishment for] drug
related offenses of lesser severity." The judge deemed "[t]his offense, this
depravity, and the recklessness, and the cavalierness of [defendant's] conduct
here . . . it's almost of biblical proportions, the antisocial aspects of
[defendant's] conduct cries out for deterrence."
Defendant appealed his sentence, which we reviewed on a sentencing
calendar, R. 2:9-11, and affirmed, only remanding to correct the judgment of
conviction to conform to the court's oral pronouncement of a twenty-seven-
and-a-half-year custodial term, not twenty-seven years as stated. See State v.
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Abril, 444 N.J. Super. 553, 564 (App. Div. 2016). The Supreme Court denied
defendant's petition for certification. State v. Ward, 236 N.J. 487 (2019).
Defendant thereafter filed a timely petition for PCR alleging his plea
counsel was ineffective for failing to argue against aggravating factors three,
six and nine, failing to argue in favor of mitigating factor twelve, N.J.S.A.
2C:44-1(b)(12) (willingness to cooperate with law enforcement), as well as the
non-statutory mitigating factor of defendant's youth, failing to address the
disparate sentence imposed on a co-defendant and failing to argue he should be
sentenced as if to a second-degree crime pursuant to N.J.S.A. 2C:44-1(f)(2),
and that his appellate counsel was also ineffective for not raising these same
points.
Judge Kirsch, who took defendant's plea and imposed sentence, rejected
those claims following oral argument in a comprehensive oral opinion,
concluding defendant had not established a prima facie case for relief. See
State v. Preciose, 129 N.J. 451, 462-64 (1992). Specifically, the judge found
there were "substantial and uncontestable grounds for aggravating factors
three, six, and nine," and noted another judge sentencing defendant over seven
years before on a third-degree drug conviction found the same aggravating
factors and no mitigating ones. The judge found defendant offered no
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assistance to law enforcement so as to qualify him for mitigating factor twelve,
and observed that by defendant's logic, "everybody who pleads guilty should
be entitled to mitigating factor twelve," which is obviously not the case.
The judge made clear defendant did not qualify for any non-statutory
mitigating factor, including youth, nor for sentencing as a second-degree
offender in light of his escalating, serial, antisocial acts, and that he would
have rejected both claims had plea counsel argued them. The judge also found
a disparity analysis was not necessary as defendant was the only one among
his co-defendants charged with murder or manslaughter, making clear why his
sentence was not comparable to theirs. Because none of those arguments
would have aided defendant in the trial court, the judge found appellate
counsel was not remiss for failing to argue them on appeal.
On this appeal, defendant reprises his arguments about the
ineffectiveness of plea and appellate counsel in the following two points:
POINT ONE
THE PCR COURT ERRED IN DENYING MR.
WARD'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AN EVIDENTIARY HEARING
AS TESTIMONY IS NEEDED FROM PRIOR
COUNSEL TO EXPLAIN WHY HE FAILED TO
RAISE MITIGATING FACTORS ON BEHALF OF
HIS CLIENT AT SENTENCING, AND FAILED TO
CHALLENGE AGGRAVATING FACTORS,
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WHICH, IF HE HAD, WOULD HAVE RESULTED
IN A SENTENCE A DEGREE LOWER FOR FIRST-
DEGREE AGGRAVATED MANSLAUGHTER.
POINT TWO
MR. WARD'S PETITION SHOULD BE
REMANDED TO THE PCR COURT AS THE PCR
COURT FAILED TO DISCUSS APPELLATE
COUNSEL'S FAILURE TO RAISE VARIOUS
SENTENCING ISSUES ON APPEAL. (Not raised
below).
Our review of the record convinces us Judge Kirsch conscientiously
considered all of defendant's claims and appropriately denied him relief. We
agree defendant failed to demonstrate the performance of his plea counsel or
his appellate counsel was substandard or that, but for any of the alleged errors,
the result would have been different. Strickland v. Washington, 466 U.S. 668,
687-88, 694 (1984). Accordingly, we affirm, substantially for the reasons
expressed in Judge Kirsch's thorough and thoughtful opinion from the bench
on January 10, 2020.
Affirmed.
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