State of New Jersey v. Sharod C. Saunders ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3174-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAROD C. SAUNDERS,
a/k/a SHAROD SAUNDERS,
SHROD C. SAUNDERS,
TAQEE SAUNDERS, AMIR
TOWNES, KERMON WILLIAMS,
SHAQUAN WILLIAMS, TARIQ
ALI, WALTER BYRD, WALTER
T. BYRD, RONALD DICKINSON,
SHAKEE HILL, ROBERT E.
HOOKS, TARIQ JEFFERSON
ROBERT HOOKS, SHAROD
SANDERS, TALA SAUNDERS,
BAMSEY SAUNDERS, BAM
SAUNDERS, and SHROD
SUNDERS,
Defendant-Appellant.
____________________________
Submitted February 28, 2024 – Decided April 2, 2024
Before Judges Susswein and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 17-03-0177.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
William A. Daniel, Union County Prosecutor, attorney
for respondent (Milton Samuel Leibowitz, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Sharod C. Saunders appeals a March 8, 2022 Law Division
order issued by Judge Robert Kirsch denying defendant's petition for
post-conviction relief (PCR) without an evidentiary hearing. Defendant alleges
he received ineffective assistance of counsel when he pled guilty to first-degree
robbery in 2017. After carefully reviewing the record in light of the governing
legal principles, we affirm.
I.
We discern the following facts and procedural history from the record.
On April 18, 2014, defendant and four co-defendants went to a metal scrapyard
in a U-Haul truck with the intention of stealing catalytic converters. The group
was armed with handguns and a rifle. Six victims were zip-tied, pistol-whipped,
punched, kicked, and held at gunpoint for more than an hour. The assailants
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fled the scrapyard with police in hot pursuit. During their flight, one of the
co-defendants leaned out of the U-Haul truck's window and shot at police,
shattering the police car's windshield.
In March 2017, the five co-defendants 1 were charged by superseding
indictment with multiple first-degree counts including attempted murder,
N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:11-3(a)(1); six counts of robbery,
N.J.S.A. 2C:15-l(a)(1); six counts of kidnapping, N.J.S.A. 2C:13-l(b)(1);
carjacking, N.J.S.A. 2C:15-2(a)(1); and unlawful possession of a handgun by a
person who has a prior conviction for a crime designated under the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2,2 N.J.S.A. 2C:39-5(j). In addition to
the first-degree charges, defendant was charged with second-degree conspiracy
to commit robbery, N.J.S.A. 2C:15-1(a)(1) and N.J.S.A. 2C:5-2(a)(1); second-
degree conspiracy to commit kidnapping, N.J.S.A. 2C:13-1(b)(1) and N.J.S.A.
2C:5-2(a)(1); and multiple counts of aggravated assault, eluding-related
offenses, and weapons-related offenses. In all, defendant was charged with
twenty-seven crimes arising from the scrapyard incident.
1
The four co-defendants—Steven Chambers, Michael Howard, Rafael
Clemmons, and Anthony Brailsford—are not parties to this appeal.
2
Defendant has a prior robbery conviction.
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On August 11, 2017, defendant appeared before Judge Kirsch to plead
guilty to a single count of first-degree robbery pursuant to a plea agreement.
The State agreed to dismiss the remaining twenty-six charges. The plea
agreement also recommended an extended-term3 sentence of twenty-two years
in prison subject to NERA, which would run concurrent to the six-year sentence
defendant was serving on a prior third-degree conspiracy conviction. The plea
agreement offered to defendant was made contingent on all co-defendants
pleading guilty.
At the outset of the plea hearing, defense counsel informed the court he
met with defendant. They discussed the strength of the State's case and the plea
agreement. Counsel further advised the court defendant was afforded the
opportunity to ask "whatever questions he may have had." Defendant confirmed
his attorney's statements, his intention to plead guilty, and his satisfaction with
his attorney's legal representation. The following exchange occurred:
The Court: Do you feel rushed in making this decision,
changing your plea to guilty?
Defendant: No.
The Court: Have you had enough time to think it
through?
3
As part of the plea agreement, defendant agreed to an extended-term sentence
based on his status as a repeat offender. He was eligible for a life sentence.
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Defendant: Yes.
The Court: Have you had enough time to speak to
[defense counsel], not only about the plea but about
your case itself?
Defendant: Yes.
The Court: Has [defense counsel] been patient with
you?
Defendant: Yes.
The Court: Has he been thorough with you?
Defendant: Yes.
The Court: Has he answered all of your questions in a
thoughtful manner?
Defendant: Yes.
The Court: Are you satisfied with his legal
representation?
Defendant: Yes.
Defendant stated he was voluntarily pleading guilty because he thought it
was in his own best interest. Under oath, defendant confirmed he was not
pressured, intimidated, or forced into pleading guilty.
Defendant twice declined an adjournment:
The Court: Do you want an adjournment of this?
Defendant: No.
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The Court: You're sure about that?
Defendant: Yes.
The Court: Okay. Do you feel that I've been patient
with you?
Defendant: Yes.
The Court: Do you feel that the prosecution has put any
pressure on you to accept the plea?
Defendant: No.
The Court: How about me—
Defendant: No.
The Court: —any pressure from me? I assure you, I
could [not] care less, [defendant], if you accept this plea
or not. Do you understand that?
Defendant: Yes.
The Court: I've got to be satisfied that this plea—that
your entering into the plea is your decision after having
enough time to think this through. Are you assuring me
of that?
Defendant: Yes.
The Court: Okay. Now you—you can't wake up
tomorrow, next week, next month with what we call
buyer's remorse, [defendant], and say you know what,
I—I want another go at this. Do you understand that?
Defendant: Yes.
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The Court: I'll give you an adjournment if you want it.
You want it?
Defendant: No.
The Court: Okay. You're sure?
Defendant: Positive.
The court then went through the signed plea form. The following
discussion occurred:
The Court: Do you recognize this document [referring
to the plea form]?
Defendant: Yes.
The Court: You've read it?
Defendant: Yes.
The Court: Every word of it?
Defendant: Every word.
The Court: You understand all of its terms and
conditions?
Defendant: Yes.
The Court: Did you review it with [defense counsel]?
Defendant: Yes.
The Court: Did you have a chance to ask him whatever
questions you had about the plea?
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Defendant: Yes.
The Court: [A]re all the answers on that—on the plea
form, sir, truthful and accurate to the best of your
understanding?
Defendant: Yes.
Defendant confirmed he was pleading guilty because he was, in fact,
guilty of first-degree robbery. He told the court he has an eleventh-grade
education, was not under the influence of any drugs, medication, or alcohol, did
not suffer from any mental, physical, or psychiatric condition impairing his
judgment, and that he knew he was in court and what he was doing there. The
following colloquy ensued:
The Court: [Defendant], did you discuss with [defense
counsel] the nature of the allegations set forth in the
indictment?
Defendant: Yes.
The Court: Did you discuss the filing of certain pretrial
motions that you might have at your disposal?
Defendant: Yes.
The Court: And the possible defenses you may have at
trial?
Defendant: Yes.
The Court: Did you discuss with [defense counsel] the
possible outcomes if you went to trial?
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Defendant: Yes.
The Court: And the consequences of pleading guilty?
Defendant: Yes.
The Court: Did you read the discovery yourself in this
case?
Defendant: Yes.
The Court: Did you discuss it with [defense counsel]
to your satisfaction?
Defendant: Yes.
The Court: Having had those discussions, again, is it
your wish to plead guilty to the [first-degree] offense of
robbery as set forth in count four?
Defendant: Yes.
Defendant told the court he understood he was giving up constitutional
rights by pleading guilty, including the right to a jury trial, the right to call and
cross-examine witnesses, the right to testify at trial on his own behalf, and his
presumption of innocence. Defendant was "positive" he did not want a trial.
Defendant then provided a factual basis for the guilty plea, admitting he
entered the scrapyard on April 18, 2014 with the intention of committing
robbery. He approached a victim and robbed him while his heavily armed
co-defendants stood nearby. Judge Kirsch entered the guilty plea, stating:
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I'll accept the plea from [defendant]. I find that the plea
has been entered into knowingly, voluntarily and
intelligently. [Defendant] is clearly an intelligent man.
He's also very experienced in the criminal justice
system. He's indicated full satisfaction with [defense
counsel], that he's had ample opportunity to discuss his
case and this plea. He's also indicated that nobody has
pressured him or intimidated him to plead guilty, that
he does not feel rushed in any regard in entering into
this plea. Correct, sir?
Defendant replied, "[c]orrect."
On November 17, 2017, Judge Kirsch sentenced defendant in accordance
with the plea agreement to twenty-two years imprisonment subject to NERA,
along with restitution, fines, and penalties. On April 11, 2018, we affirmed
defendant's sentence on a Sentencing Oral Argument calendar.
On December 6, 2020, defendant filed his initial PCR petition. Judge
Regina Caulfield dismissed his petition without prejudice for not specifying
facts upon which his claims were based.
On March 4, 2021, defendant filed a second PCR petition—the matter now
before us. He also filed a certification, an amended verified petition, a
supplemental verification, PCR counsel's brief and appendix, and a letter from
co-defendant Clemmons in support of defendant's petition. 4
4
That letter reads in pertinent part:
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On March 1, 2022, Judge Kirsch convened oral argument. On March 8,
2022, he denied defendant's petition by order accompanied by a
twenty-five-page written opinion. This appeal follows.
Defendant raises the following contention for our consideration on appeal:
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
COUNSEL RENDERED INEFFECTIVE
ASSISTANCE DURING THE PLEA NEGOTIATION
PROCESS BY DISCLOSING INFORMATION TO
THE STATE WHICH LED TO AN UNFAVORABLE
PLEA OFFER, FAILING TO PROVIDE HIS CLIENT
WITH COMPLETE DISCOVERY, AND INSISTING
THAT [DEFENDANT] WOULD GO TO PRISON
FOR LIFE IF HE WENT TO TRIAL, ALL OF WHICH
PRESSURED HIM INTO A PLEA HE OTHERWISE
WOULD NOT HAVE TAKEN.
Defendant raises the following contention in his pro se brief:
THE PCR COURT ERRED IN DENYING
[DEFENDANT]'S PETITION FOR [PCR] WITHOUT
[Defendant] had no idea about [the] robbery. . . . I
called him and asked him did he want to make a quick
$300 dollars helping me and a few guys load some . . .
scrap metal onto a truck, he said ok nor did he have a
gun nor did he assault anyone . . . . One of the guys
"Rasheed" put a gun to his back when he seen what
transpired and didn't want any part[] of a robbery and
tried to leave. . . I'm just trying to free [an] innocent
man from something he had any [sic] knowledge of or
wanted to participate in any criminal wrong-doing. I'm
just trying to do the right thing here.
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GRANTING AN EVIDENTIARY HEARING WHEN
THERE WAS A CLEAR SHOWING THAT HIS
TRIAL ATTORNEY WAS INEFFECTIVE FOR
FAILING TO SUBJECT THE PROSECUTION'S
CASE TO A MEANINGFUL ADVERSARIAL
TESTING PURSUANT TO BOTH THE SIXTH
AMENDMENT OF THE U.S. CONSTITUTION AND
ARTICLE I, ¶ 1, 10 OF NEW JERSEY
CONSTITUTION.
II.
We begin our analysis by acknowledging the foundational legal principles
governing this appeal. PCR is not a substitute for a direct appeal. State v.
Szemple, 247 N.J. 82, 97 (2021). Rather, it serves the same function as the
federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When
petitioning for PCR, a defendant must establish, by a preponderance of the
credible evidence, that he or she is entitled to the requested relief. Ibid. The
defendant must allege and articulate specific facts that "provide the court with
an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565,
579 (1992). "Where, as here, the PCR court has not conducted an evidentiary
hearing, we review its legal and factual determinations de novo." State v.
Aburoumi, 464 N.J. Super. 326, 338 (App. Div. 2020); see also State v. Nash,
212 N.J. 518, 540-41 (2013).
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In addressing an ineffective assistance claim, New Jersey courts follow
the two-part test articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See State v. Fritz, 105 N.J. 42, 58
(1987). "First, the defendant must show that counsel's performance was
deficient." State v. Gideon, 244 N.J. 538, 550 (2021) (quoting Strickland, 466
U.S. at 687). "Second, the defendant must have been prejudiced by counsel's
deficient performance." Ibid. (citing Strickland, 466 U.S. at 687).
To meet the first prong of the Strickland/Fritz test, a defendant must show
"that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466
U.S. at 687. Reviewing courts indulge in "a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance." Id.
at 689.
The second prong requires the defendant to show "that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable." Id. at 687. Put differently, counsel's errors must create a "reasonable
probability" that the outcome of the proceedings would have been different if
counsel had not made the errors. Id. at 694. This "'is an exacting standard.'"
Gideon, 244 N.J. at 551 (quoting State v. Allegro, 193 N.J. 352, 367 (2008)).
A-3174-21
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"Prejudice is not to be presumed," but must be affirmatively proven by the
defendant. Ibid. (citing Fritz, 105 N.J. at 52, and Strickland, 466 U.S. at 693).
A defendant's right to effective assistance of counsel "extends to the
plea-bargaining process." Lafler v. Cooper, 566 U.S. 156, 162 (2012). "'[T]he
two-part Strickland v. Washington test applies to challenges to guilty pleas
based on ineffective assistance of counsel.'" Id. at 162-63 (quoting Hill v.
Lockhart, 474 U.S. 52, 58 (1985)). The "defendant must show the outcome of
the plea process would have been different with competent advice." Id. at 163.
Short of obtaining immediate relief, a defendant may show that an
evidentiary hearing is warranted to develop the factual record in connection with
an ineffective assistance claim. Preciose, 129 N.J. at 462-63. However, "[i]f
the court perceives that holding an evidentiary hearing will not aid the court's
analysis of whether the defendant is entitled to [PCR], . . . then an evidentiary
hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997)
(citations omitted). A PCR court's decision to proceed without an evidentiary
hearing is reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super.
609, 623 (App. Div. 2023) (citing State v. Brewster, 429 N.J. Super. 387, 401
(App. Div. 2013)).
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Furthermore, the mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). The PCR court should grant an evidentiary hearing only
when "(1) the defendant establishes a prima facie case in support of PCR; (2)
the court determines that there are disputed issues of material fact that can not
be resolved by review of the existing record; and (3) the court determines that
an evidentiary hearing is required to resolve the claims asserted." Vanness, 474
N.J. Super. at 623 (citing State v. Porter, 216 N.J. 343, 354 (2013)).
With respect to the first of these three requirements, "[a] prima facie case
is established when a defendant demonstrates 'a reasonable likelihood that his
or her claim, viewing the facts alleged in the light most favorable to the
defendant, will ultimately succeed on the merits.'" Porter, 216 N.J. at 355(quoting R. 3:22-10(b)). "[V]ague, conclusory, or speculative" allegations are
insufficient to warrant an evidentiary hearing. Ibid. (quoting Marshall, 148 N.J.
at 158).
III.
We first address defendant's contention his counsel was ineffective during
the plea negotiation process by "pressuring him into [a] guilty plea he otherwise
would not have taken." Defendant certified he told trial counsel he was
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innocent, as he was unaware of the plot to rob the metal scrap yard, and he acted
under duress because he was prevented from leaving the area by gunpoint.
Defendant claims he wanted to proceed to trial after his co-defendants pled
guilty, but once his attorney explained he would face the maximum sentence if
he went to trial, defendant "had no choice but to plead guilty as a result of
counsel's ineffective assistance."
That assertion is belied by the record, which shows defendant told the
court under oath he had not been pressured, rushed, or intimidated into pleading
guilty. Defendant rejected two adjournment offers and confirmed he believed
pleading guilty was in his own best interest. We agree with Judge Kirsch's
finding that defendant's argument that his counsel pressured him into pleading
guilty is "a bald, self-serving allegation." See Strickland, 466 U.S. at 687.
IV.
We likewise reject defendant's contention his plea counsel violated the
attorney-client privilege and rendered constitutionally deficient assistance by
divulging his duress defense to the State, which, defendant argues, "resulted in
the [S]tate demanding that all of the plea offers become contingent."
In the circumstances presented in this matter, Rule 3:12-1 required trial
counsel to notify the State of his duress defense. Rule 3:12-1 provides, "[a]
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defendant shall serve written notice on the prosecutor if the defendant intends
to rely on any of the following sections of the Code of Criminal Justice . . .
Duress, [N.J.S.A.] 2C:2-9(a)." The Rule also requires defense counsel to
disclose a defendant's duress defense "[n]o later than seven days before the
Initial Case Disposition Conference that is scheduled pursuant to R[ule] 3:9-
1(e)." Ibid. "If a party fails to comply with this Rule, the court may take such
action as the interest of justice requires," including "refusing to allow the party
in default to present witnesses in support or in opposition of that defense at
trial." Ibid.Here, on February 3, 2016, trial counsel entered his appearance. On
March 3, 2016, counsel filed a notice of intention to rely on a duress defense.
On May 8, 2017, an Initial Case Disposition Conference was held. Thus, trial
counsel's actions were timely and effective, ensuring defendant would have been
able to proffer a duress defense and call witnesses in support of that defense had
he gone to trial. In these circumstances, Judge Kirsch correctly determined
defendant failed to establish the first prong of the Strickland/Fritz test. See
Strickland, 466 U.S. at 687; State v. DiFrisco, 137 N.J. 434, 457 (1994).
Defendant also failed to satisfy Strickland's second prong. See Strickland,
466 U.S. at 687. Defendant's claim trial counsel's actions "resulted in the [S]tate
A-3174-21
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demanding that all of the plea offers become contingent" is speculative, bald,
and unsupported by the record.
In reaching this conclusion, we stress plea bargaining is "'firmly
institutionalized in this State as a legitimate, respectable and pragmatic tool in
the efficient and fair administration of justice.'" State v. Means, 191 N.J. 610,
618 (2007) (quoting State v. Taylor, 80 N.J. 353, 360-61 (1979)). "The
cornerstone of the plea bargain system is the 'mutuality of advantage' it affords
to both defendant and the State." Taylor, 80 N.J. at 361 (citations omitted).
Although "[a] defendant has . . . 'the ultimate authority' to determine 'whether to
plead guilty,'" Florida v. Nixon, 543 U.S. 175, 187 (2004) (citations omitted),
the decision whether to engage in plea bargaining rests with the State. See State
v. Williams, 277 N.J. Super. 40, 46 (App. Div. 1994).
It is also well-established that "the State may set conditions on a plea offer
and may withdraw its acceptance of the agreement if the conditions are not met."
State v. Conway, 416 N.J. Super. 406, 411 (App. Div. 2010). "One common
and unobjectionable example is a plea offer contingent on all co-defendants
accepting a plea deal." Ibid. See also State v. Smith, 306 N.J. Super. 370, 382
(App. Div. 1997) ("Plea agreements contingent upon joint pleas of
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co-defendants are commonplace and based to some degree upon the prosecutor's
evaluation of tactical decisions and proofs at trial.").
Here, Judge Kirsch acknowledged the prosecutor's authority to engage in
plea bargaining and set conditions on the plea offer. See Conway, 416 N.J.
Super. at 412. Defendant was charged as part of a thirty-count indictment with
four co-defendants. Thus, Judge Kirsch correctly found it "entirely reasonable"
and "legally permissible" for the State to make the pleas contingent on all
defendants pleading guilty.
Furthermore, there is also no evidence supporting defendant's contention
the State made the pleas contingent because of his duress defense. But even
were we to accept for the sake of argument the prosecutor's decision was because
of that defense, defendant has not established a "reasonable probability" that he
would not have pled guilty but for counsel's actions. See State v. Alvarez, 473
N.J. Super. 448, 457 (App. Div. 2022). We emphasize if defendant went to trial
and was convicted of all twenty-seven charges against him, he faced a term of
imprisonment greater than life. We are satisfied it would have been
unreasonable in these circumstances to reject the State's plea offer, which
significantly reduced defendant's sentencing exposure and ensured the new
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sentence would run concurrent to the sentence he was already serving on his
prior conspiracy conviction.
Moreover, the record clearly shows defendant on multiple occasions
during the plea hearing affirmed his desire to plead guilty instead of proceeding
to trial. Judge Kirsch concluded defendant "weighed all the evidence, including
the letter purportedly [written by] Mr. Clemmons,5 and the potential outcomes,
and determined it was in his best interest to plead guilty instead of going to trial
and presenting a duress defense. There . . . is no ineffectiveness of counsel in
such a circumstance." We agree.
V.
We need only briefly address defendant's contention "counsel failed to
provide him with all discovery despite his repeated requests, so he was not fully
informed as to the [S]tate's case and had no confidence in counsel's ability to
5
We note Clemmons's letter does not comply with the requirements of Rule
3:22-10(c), which provides "[a]ny factual assertion that provides the predicate
for a claim of relief must be made by an affidavit or certification pursuant to
Rule 1:4-4 and based upon personal knowledge of the declarant before the court
may grant an evidentiary hearing." See Cummings, 321 N.J. Super. at 170.
Furthermore, the letter is contradicted by defendant's sworn testimony. At the
plea hearing, defendant was asked, "it was the intent of the—the group that you
were with, those in the indictment that we named, to rob the place. Correct?"
Defendant responded, "[i]t was my intent." (Emphasis added).
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defend him at a trial." More specifically, defendant argues his attorney provided
him with only six of thirty computer disks comprising the State's discovery. He
also claims some of the six disks were duplicates.
The PCR court correctly determined defendant's discovery-related
allegations are "bald, self-serving, [and] unsupported" by the record. During his
plea colloquy, defendant confirmed he was not forced to plead guilty, had time
to speak with his attorney and review discovery, and was satisfied with his
representation. Defendant's sworn testimony directly contradicts his assertion
trial counsel did not review discovery with him. Judge Kirsch therefore
correctly determined defendant did not rebut "the strong presumption that trial
counsel's conduct falls within the wide range of reasonable professional
assistance as required under prong one of Strickland, and this claim of
ineffective assistance of counsel fails the two-prong Strickland test."
We add that even assuming for the sake of argument counsel failed to
share with defendant all computer disks storing the State's discovery, defendant
has failed to establish what is on the disks that were not provided to him by his
counsel or that he would have rejected the State's favorable guilty plea based on
discovery he did not review prior to pleading guilty. He therefore has failed to
establish the second prong of the Strickland/Fritz test. See Lafler, 566 U.S. at
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163 ("[D]efendant must show the outcome of the plea process would have been
different with competent advice.").
In sum, defendant failed to establish a prima facie case of ineffective
assistance of counsel or prejudice resulting from counsel's representation. See
Strickland, 466 U.S. at 687. Furthermore, Judge Kirsch correctly determined
there are no material issues of disputed fact in the existing record. See Porter,
216 N.J. at 355. Defendant has thus failed to establish a basis for convening an
evidentiary hearing, much less to overturn his guilty plea conviction. See ibid.Affirmed.
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