State of New Jersey v. Donald B. Lindsey ( 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NOT FOR PUBLICATION WITHOUT THE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-2124-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD B. LINDSEY,
Defendant-Appellant.
___________________________
Submitted January 24, 2024 – Decided February 29, 2024
Before Judges Currier and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 10-09-2451.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Grace C. MacAulay, Camden County Prosecutor,
attorney for respondent (Kevin Jay Hein, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
This matter returns to us after remand. Defendant Donald B. Lindsey
appeals from the October 13, 2021 Law Division order denying his petition for
post-conviction relief (PCR) following an evidentiary hearing. Because the PCR
judge's decision is supported by sufficient credible evidence in the record, we
affirm.
The salient facts were previously recounted in our decisions on
defendant's direct appeal, State v. Lindsey, No. A-6303-11 (App. Div. Aug. 20,
2015), certif. denied, 223 N.J. 558 (2015) (Lindsey I), and defendant's first PCR
appeal, State v. Lindsey, No. A-0531-18 (App. Div. Jan. 6, 2020) (Lindsey II).
We briefly set forth the facts material to our determination after an evidentiary
hearing was held by the PCR court on remand to decide defendant's sole
remaining claim of ineffective assistance of counsel as to defendant's rejection
of a plea offer.
On August 4, 2008, defendant and co-defendant, Martin D. Pierce,
exchanged gunfire, resulting in the death of a four-year-old bystander, B.T.1
Under indictment No. 10-09-2451, defendant was charged with first-degree
1
We use initials in accordance with prior proceedings in this matter and to
respect the identity of the child victim.
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2
murder, N.J.S.A. 2C:11-3(a)(1) and -3(a)(2); first-degree attempted murder,
N.J.S.A. 2C:5-1; and multiple weapons charges.
Defendant and Pierce were tried jointly before a jury in February and
March 2012. The jury found defendant guilty of the attempted murder of Pierce
and acquitted defendant of the first-degree murder of B.T., but found him guilty
of the lesser included offense of manslaughter "committed in the heat of passion
resulting from a reasonable provocation" pursuant to N.J.S.A. 2C:11-4(b)(2),
and the weapons charges. The court subsequently sentenced defendant to an
aggregate thirty-three-year term of incarceration.
Defendant appealed and on August 20, 2015, we issued Lindsey I, a
consolidated opinion addressing the appeals filed by both defendant and Pierce.
We remanded to the trial court for a statement of reasons as to the court's
decision to impose a consecutive sentence for defendants' respective weapons
convictions.
On February 23, 2016, defendant filed a pro se PCR petition, which the
court dismissed without prejudice on February 17, 2017 due to the pending
direct appeal. On remand, the trial court resentenced defendant on May 5, 2017
to an aggregate twenty-eight-year term of imprisonment, however, the
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3
sentencing order was amended on May 8, 2017 to reflect defendant's time-served
credits.
On June 16, 2017, defendant requested that the court reinstate his PCR
petition, after which he filed an amended petition, certification and briefs. The
PCR court held a non-evidentiary hearing on August 17, 2018 and denied
defendant's petition in an August 21, 2018 order.
Defendant appealed, asserting that he received ineffective assistance of
counsel both before and during trial. Our January 6, 2020 Lindsey II decision
affirmed the PCR court's rejection of all defendant's arguments, save for one.
Id. at 3. We noted that the "exact terms and circumstances" of any plea
agreement that defendant was offered were "uncertain." Id. at 10 n.1. We
remanded the matter "for an evidentiary hearing limited solely to the
circumstances pertaining to [the State's] plea offer and defendant's decision to
reject that offer upon the advice of counsel." Id. at 3. Specifically, we instructed
the PCR court to consider four matters on remand:
(1) the precise terms of the plea offer, (2) the
circumstances in which it was tendered, (3) when
exactly the State first made the plea offer contingent on
Pierce pleading guilty, and (4) when in relation to the
imposition of such a precondition did defense counsel
give the advice now claimed to constitute ineffective
assistance of counsel.
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[Id. at 17-18.]
We further instructed that "in the event the PCR court on remand decides
to grant defendant's petition, the appropriate relief would not be to order a new
trial but rather to reoffer the plea agreement." Id. at 23 n.3.
On June 12, 2020, PCR counsel filed a supplemental brief on defendant's
behalf. On October 13, 2021, the PCR court held an evidentiary hearing at
which the defense called two witnesses, defendant and Marcia Soast, defendant's
trial counsel. The State called one witness, the State's prosecutor, Peter
Crawford. Three exhibits were moved into evidence: 1) a plea form from the
State dated August 10, 2009, offering defendant a thirty-year term of
incarceration with no parole eligibility in addition to various monetary penalties,
conditioned on truthfully testifying at trial against Pierce (S-1); 2) a case
scheduling order (S-2); and 3) a pretrial memorandum dated May 27, 2011 (S-
3).
At the outset of the evidentiary hearing, the PCR court ruled that, other
than the issues on remand, the application was time-barred under Rule 3:22-4.
The PCR court did not find that any of the exceptions to the temporal limitations
on a subsequent PCR petition applied because all of the additional grounds
asserted could have been raised in a prior proceeding, there was no fundamental
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injustice, and the denial of the relief would not be contrary to a new rule or
constitutional authority. Thus, the PCR court narrowed the hearing to the issues
we directed the trial court to address on remand.
The PCR court noted this court had an incomplete record when
considering defendant's prior PCR appeal. Specifically, the record lacked
evidence that the State had also offered defendant a plea for a twenty-five-year
term of incarceration that reduced the first-degree murder charge to one of
aggravated manslaughter pursuant to N.J.S.A. 2C:11-4(c). The PCR court
considered the recording of a May 27, 2011 pretrial hearing, which confirmed
the State offered a pretrial plea agreement with a recommended twenty-five-year
term of incarceration.
The PCR court found Soast's testimony to be clear, concise, unequivocal
and credible. Soast testified that the initial plea offer was for thirty years of
incarceration, contingent on defendant's truthful testimony against Pierce but
prior to trial the State changed the offer to twenty-five years. Soast reviewed
the pretrial memorandum to refresh her memory and testified that the State
offered defendant a proposed plea of guilty to aggravated manslaughter with a
recommended twenty-five years of incarceration and eighty-five percent parole
ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
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Soast stated that the proposed plea offer in the pretrial memorandum did not
require defendant to testify against Pierce.
Soast testified that she met with defendant numerous times to discuss the
case and the plea offers. She thought twenty-five years was an offer he should
seriously consider because this was a complicated case with strong proofs tying
defendant to the murder of a child through forensic evidence of the bullet as well
as witness testimony. Although defendant was asserting self-defense, which
Soast concluded was plausible, there was an issue about defendant's possession
of a weapon during the incident and a prior weapons offense. In addition to the
murder charges, defendant was facing various weapons charges with exposure
to potential significant jail time.
Soast testified that defendant was not initially inclined to accept the plea
offer. But, as the trial date came closer, defendant became increasingly
interested in accepting the offer. However, at that point the State had added the
contingency that Pierce also plead guilty. Ultimately, since Pierce would not
agree to a plea offer, the case proceeded to trial.
The PCR court found defendant's testimony at the evidentiary hearing was
less credible than Soast's since he did not give any detailed testimony and some
of his responses were confusing. Defendant asserted at the hearing that the
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initial plea offer was for twenty-five years to aggravated manslaughter and
included a condition that he testify against Pierce. Defendant stated he wanted
to plead guilty but "didn't want to testify" and was, therefore, unable to accept
the plea offer. Defendant also testified to meeting with his trial counsel "many"
times to discuss the merits of the case. He understood that success at trial on
his assertion of self-defense would be "hard to get."
On cross-examination, defendant asserted he testified truthfully at trial
that it was Pierce's bullet that struck the victim. Defendant also testified that, if
he had taken the plea agreement for aggravated manslaughter, he would have
"admitted that it was [his] bullet that struck the victim." Defendant
acknowledged his trial testimony would not have been truthful if he had already
pled guilty to the factual predicate for aggravated manslaughter.
The PCR court found Crawford's testimony to be "absolutely credible"
since he testified clearly, without hesitancy, and unequivocally with direct eye
contact. Crawford also testified that the original thirty-year plea offer was
reduced to twenty-five years prior to trial with eighty-five percent NERA parole
ineligibility for first-degree aggravated manslaughter. Crawford further
testified that the only condition to defendant's offer "was the truthful[,] factual
[testimony] regarding co-defendant, and [that defendant] agree to testify
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truthfully at trial." Crawford said that it was "never [his] offer that [the] plea
was actually contingent upon . . . Pierce pleading guilty." Additionally,
Crawford testified that defendant was only "willing to plead guilty under his
own terms, and that he didn't want to under the State's terms, which was namely
give a truthful[,] factual [testimony] regarding the co-defendant."
Crawford explained that when Soast said during sentencing that defendant
would have pled guilty if there had not been the contingency that Pierce also
plead guilty, he did not correct her because the focus of the court at that time
was on sentencing and "not to go over the terms of the plea agreement again."
Further, Crawford testified that the State would "never have gone lower than"
the twenty-five-year offer "because of the serious nature of the case." Crawford
also clarified that under any plea agreement, defendant would have been
required to testify truthfully during plea allocution, at his sentencing hearing
and at Pierce's trial.
Crawford proffered that some of the pretrial documentation was missing
the requirement that defendant testify truthfully in order to accept the plea offer
because of an "oversight." However, he said the State "would never drop that
condition" and although it was "left . . . off the form," it was not "left . . . off the
offer." Crawford testified that this oversight would not have caused confusion
A-2124-21
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for defendant because "frankly this case [dragged] on for three or four years in
the pretrial process" and the State "had plenty of discussions" with defendant
through his trial counsel "about what he needed to do or not do." Crawford said
defendant could have accepted the offer up until the start of trial, regardless of
whether Pierce also pled guilty.
At the conclusion of the hearing, the PCR court orally denied defendant's
petition. The PCR court discussed each of the four issues directed be addressed
on remand, finding the testimony at the evidentiary hearing detailed "the precise
terms of the plea offer," "the circumstances under which [the offers] were
tendered," and that defendant could have "accepted that plea offer regardless of
what the co-defendant . . . was going to do . . . with respect to the charges against
him." The PCR court also determined that defendant's trial counsel discussed
with him the strengths of his case and his potential sentence exposure.
The PCR court found precise terms of the plea offer were established by
the testimony of Soast and Crawford, as well as through S-1 and S-3. The PCR
court concluded the State never attached a contingency that Pierce plead guilty
to any plea offer. The PCR court found the initial plea offer on August 10, 2009,
set forth in S-1, was thirty-years imprisonment subject to NERA with eighty-
five percent parole ineligibility with the requirement that truthful testimony be
A-2124-21
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provided at trial on the charges against Pierce, and waiver of any appeal. The
pretrial memorandum, S-3, along with Crawford's credible testimony,
memorialized the plea offer of twenty-five-years imprisonment on the same
terms with the offer remaining open for acceptance until trial.
The PCR court found defendant's testimony that his first awareness of the
plea offer was by way of the pretrial memorandum was factually inaccurate
based upon S-1, dated August 10, 2009, which set forth an initial plea offer of
thirty-years imprisonment subject to NERA with an agreement to testify
truthfully at trial and a waiver of the right to appeal. Although the conditions
set forth in S-1 did not appear in the pretrial memorandum (S-3), the court found
Crawford's unequivocal and adamant testimony as to the conditions of the
twenty-five-year plea offer to be credible in that there was never a condition that
Pierce also plead guilty.
The PCR court found that there was no ineffective assistance of counsel
on either prong of the Strickland2 test. Further, the PCR court found that
"[t]here's no prejudice to the defendant. There was nothing to be prejudiced.
He made a conscious decision, for whatever reason . . . to [reject] the State's
2
Strickland v. Washington, 466 U.S. 668 (1984).
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plea offer" and that defendant "wasn't going to testify against the co-defendant
in this matter."
On October 13, 2021, the PCR court memorialized its decision denying
defendant's PCR petition in a written order. The order specifies that all non-
remanded claims were time barred pursuant to Rule 3:22-4 and exceeded the
scope of the limited proceeding.
This appeal follows. Defendant raises the following contentions on
appeal:
POINT ONE
[DEFENDANT] IS ENTITLED TO RELIEF ON HIS
CLAIM THAT HIS ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY
FAILING TO ADVISE HIM ADEQUATELY ABOUT
THE STATE'S PLEA OFFER.
POINT TWO
[DEFENDANT]'S CLAIM THAT COUNSEL
RENDERED INEFFECTIVE ASSISTANCE FOR
FAILING TO FILE A MOTION FOR IMPROPER
JOINDER MUST BE REMANDED FOR FINDINGS
OF FACT AND CONCLUSIONS OF LAW.
PCR is New Jersey's response to the federal writ of habeas corpus. State
v. Preciose, 129 N.J. 451, 459 (1992). To succeed in obtaining PCR, a defendant
must "'establish, by a preponderance of the credible evidence, that he [or she] is
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entitled to the requested relief.'" State v. Mitchell, 126 N.J. 565, 579 (1992)
(quoting State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990)).
Determining whether counsel's performance was ineffective for purposes
of the Sixth Amendment to the United States Constitution requires analysis
under the standards formulated in Strickland, 466 U.S. at 687-88, and adopted
by the Court in State v. Fritz, 105 N.J. 42, 58 (1987). To prevail on a claim of
ineffective assistance of counsel, defendant must meet the two-prong test of
establishing that: (l) counsel's performance was deficient and counsel made
errors that were so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment, Strickland, 466 U.S. at 687; and (2) the
defect in performance prejudiced defendant's right to a fair trial such that there
exists a "reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694.
Our "review is necessarily deferential to a PCR court's factual findings
based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540
(2013). However, a PCR court's interpretation of the law is reviewed de novo.
Id. at 540-41.
"'Ineffective-assistance-of-counsel claims are particularly suited for post-
conviction review because they often cannot reasonably be raised in a prior
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proceeding.'" State v. Hess, 207 N.J. 123, 145 (2011) (quoting Preciose, 129
N.J. at 460). As set forth in Lafler v. Cooper, 566 U.S. 156, 164 (2012), to
establish prejudice when a defendant has rejected a plea offer on the basis of
deficient advice, the defendant must show that but for the ineffective advice,
there is a reasonable probability "that the defendant would have accepted the
plea and the prosecution would not have withdrawn it," "the court would have
accepted its terms," and "the conviction or sentence, or both," under the plea
"would have been less severe" than the judgment and imposed sentence. To
establish a prima facie case of ineffective assistance of counsel, a defendant
must present legally competent evidence rather than "bald assertions." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant has not met
that standard.
We turn first to defendant's argument that his trial counsel rendered
ineffective assistance by failing to advise him adequately about the State's plea
offer. This allegation is entirely unsubstantiated by the record. Providing the
deference due to the PCR court's findings of fact, the record establishes that
Soast met with defendant many times and reviewed with him all aspects of the
case, the likelihood of success at trial, the sentencing exposure, and all iterations
of the plea agreements proffered by the State. Soast testified that she advised
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defendant that he had a "complicated" case and never discouraged him from
accepting the plea agreement. The PCR court found Soast's testimony credible,
in fact "much more credible than the defendant in this matter."
We see no wisdom in disturbing the PCR court's factual findings. See
State v. Gideon, 244 N.J. 538, 551 (2021). Based on our thorough review of the
record before the trial court and prevailing law, defendant has failed to establish
counsel's performance was deficient sufficient to meet the first prong of the
Strickland standard. 466 U.S. at 687.
Even if defendant had shown his trial counsel's performance was deficient,
defendant has also failed to establish the second prong of Strickland which
requires that defendant show he was prejudiced. Ibid. At the evidentiary
hearing before the PCR court, defendant posited that he truthfully testified that
it was a bullet from Pierce's gun that hit and ultimately killed B.T. In order for
defendant to have accepted a plea offer, he would have had to accept the State's
requirement that he testify truthfully at allocution and during Pierce's trial.
Pleading guilty to aggravated manslaughter would necessarily require defendant
to testify that it was a bullet from his own gun that killed B.T. As defendant
continues to maintain it was not his bullet, he cannot claim he was prejudiced
by not accepting an agreement that would require untruthful testimony.
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[O]ur court rules and case law do not permit either the
taking of a plea, or the sanctioning of one, that is based
on a known lie. Because a trial court cannot give its
seal of approval to, or become complicit in, a
defendant's plan to commit perjury at a plea hearing, a
PCR court, engaging in a hindsight review, cannot hold
that a plea would have been acceptable had a defendant
lied under oath.
[State v. Taccetta, 200 N.J. 183, 186 (2009).]
As defendant's first argument fails under both prongs of Strickland, we
now turn to defendant's second contention that his trial counsel rendered
ineffective assistance for failing to file a motion for improper joinder. The PCR
court rejected this argument as improper since it was not raised to the trial court
or on direct appeal. "A petitioner is generally barred from presenting a claim
on PCR that could have been raised at trial or on direct appeal, R[ule] 3:22-4(a),
or that has been previously litigated, R[ule] 3:22-5." Nash, 212 N.J. at 546. We
agree that the improper joinder claim is procedurally barred under Rule 3:22-4.
Further, the PCR court found these arguments were outside of the limited
scope of the remand. We agree. The parameters of the remand were clearly
defined. The purview of the PCR court was "to convene an evidentiary hearing
solely on defendant's contention that counsel rendered ineffective assistance
with respect to the advice counsel gave to defendant concerning the State's plea
offer." Lindsey II, slip op. at 23. "In all other respects, we affirm[ed] the PCR
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court's decision to deny defendant's petition without a hearing." Ibid.Defendant's newly raised argument on improper joinder is beyond the scope of
this appeal, and we need not consider it further.
Affirmed.
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