State of New Jersey v. Andre Dawson ( 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NOT FOR PUBLICATION WITHOUT THE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-0599-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDRE DAWSON, a/k/a
ANDRE MARIO DAWSON,
ANDREA DAWSON, and
ANDRE M. DAWSON, III,
Defendant-Appellant.
Submitted February 5, 2024 – Decided February 29, 2024
Before Judges Sabatino and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Accusation No. 19-04-0294.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Anderson David Harkov, Designated
Counsel, on the brief).
William A. Daniel, Union County Prosecutor, attorney
for respondent (Michele C. Buckley, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Andre Dawson appeals from the trial court's August 31, 2022
order and accompanying written opinion denying his petition for post-
conviction relief ("PCR") concerning his 2019 conviction of third-degree
aggravated assault on a bus driver, N.J.S.A. 2C:12-1(b)(5)(g). We affirm,
substantially for the reasons stated in the PCR judge's written opinion.
We briefly state the pertinent background. Defendant's conviction arose
out of an investigation showing that on January 28, 2019, he got into an
argument with the driver of a New Jersey Transit bus, and physically assaulted
her.
The State charged defendant in Accusation No. 19-04-00294 with
committing a violation of N.J.S.A. 2C:12-1(b)(5)(g). Thereafter, plea
negotiations ensued between the State and Dawson's defense counsel. Those
negotiations resulted in a plea agreement, which was memorialized on a plea
form signed by defendant, his attorney, and the assistant prosecutor .
The plea form specified that defendant would plead guilty to the charged
offense, and that, in exchange, the State would dismiss charges of second-degree
robbery and third-degree aggravated assault, which had been charged in a
complaint-warrant separate from the Accusation. The State further agreed to
recommend a prison sentence not to exceed "[eight years] flat."
A-0599-22
2
Defendant appeared at a plea hearing before the trial court on April 11,
2019, and he stated under oath his voluntary assent to the terms of the plea
agreement. He also provided the necessary factual basis for the charged offense.
On June 7, 2019, defendant appeared for sentencing before a different
judge. During that proceeding, the judge noted on the record that defendant had
other unrelated charges pending against him, and that she had received an
inquiry from defense counsel about "resolving that matter along with this one."
The prosecutor responded that the State was not willing to make a so-called
"global plea offer," or a "package plea" offer, but instead would make a separate
offer on that other matter with a recommendation for "additional jail time."
Defense counsel did not comment on that colloquy, nor did defendant.
The court sentenced defendant to an eight-year term as a persistent
offender. The sentence was consistent with the plea agreement.
Defendant appealed his sentence, contending it was excessive. After oral
argument, this court affirmed the sentence by order dated June 30, 2020. See
State v. Andre Dawson, No. A-300-19 (App. Div. June 30, 2020).
Thereafter, defendant filed an initial PCR petition in January 2021, with
supplemental briefing in September 2021 after being assigned counsel. The
supplemental briefing sought an evidentiary hearing.
A-0599-22
3
Defendant argues his plea counsel was constitutionally ineffective by
allowing him to assent to the plea agreement without negotiating a global
resolution that included the other pending charges. Apparently, those other
charges have resulted in defendant being sentenced to additional prison time
consecutive to the eight years imposed in this case.
After hearing oral argument on June 30, 2022, Judge Candido Rodriguez
denied defendant's petition and found no need for an evidentiary hearing.
Defendant now appeals from that PCR denial. He advances the following
argument in his brief:
POINT I
THE FAILURE OF TRIAL COUNSEL TO
NEGOTIATE A PLEA AGREEMENT THAT
ENCOMPASSED ALL OF DEFENDANT'S
PENDING CHARGES, SUBJECTED DEFENDANT
TO CONSECUTIVE SENTENCES AND A
PIECEMEAL SENTENCING PROCESS THAT WAS
SEVERELY PREJUDICIAL AND DEPRIVED
DEFENDANT OF HIS CONSTITUTIONAL RIGHT
TO THE EFFECTIVE ASSISTANCE OF COUNSEL
Elaborating on this point, defendant asserts that "[a]lthough the [S]tate
was not required to make a global plea offer, it is almost routine for prosecutors
to do so in such situations in order to 'wrap up' all pending charges at one time."
He thus contends that "[t]he failure of trial counsel to attempt to negotiate a
A-0599-22
4
global plea offer subjected defendant to consecutive sentences and a piecemeal
sentencing process that greatly increased his exposure to an extended period of
incarceration in state prison and [he] was therefore severely prejudic[ed]."
The State counters that it had no obligation to enter into global plea
negotiations. It maintains defendant knowingly entered into the present plea
agreement for this case, well aware that it was not a global arrangement.
In evaluating these arguments, we are guided by well established
principles. Under the Sixth Amendment of the United States Constitution, a
person accused of crimes is guaranteed the effective assistance of legal counsel
in his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish a deprivation of that right, a convicted defendant must satisfy the two-
part test enunciated in Strickland by demonstrating that: (1) counsel's
performance was deficient, and (2) the deficient performance actually
prejudiced the accused's defense. Id. at 687; see also State v. Fritz, 105 N.J. 42,
58 (1987) (adopting the Strickland two-part test in New Jersey). When
reviewing such claims, courts apply a strong presumption that defense counsel
"rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment." Strickland, 466 U.S. at 690.
A-0599-22
5
The United States Supreme Court has extended these principles to the
representation provided by a criminal defense attorney to an accused in
connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 162-63
(2012); Missouri v. Frye, 566 U.S. 134 (2012). To prevail, a defendant must
show with "reasonable probability" that the result would have been different had
defendant received proper advice from plea counsel. Lafler, 566 U.S. at 163;
see also Hill v. Lockhart, 474 U.S. 52, 59 (1985) (articulating and applying the
"reasonable probability" test to such settings).
We concur with the PCR judge that defendant has not presented such a
reasonable probability of a different outcome here. As defendant concedes, the
State had no legal obligation to make a global plea offer. The sentencing judge's
comments explicitly reflect that defense counsel asked about the possibility in
chambers, and the prosecutor made very clear on the record that no such global
offer would be made. Defendant was present in court to hear that colloquy.
It is pure speculation that the prosecution would have changed its position
if defendant held out and refused to accept a plea offer confined to this
accusation. In addition, we note defendant was a persistent offender with a prior
criminal record. There is no reason to believe, even in hindsight, that the State
was likely to have adopted a more lenient approach and extended a global offer.
A-0599-22
6
Defendant failed to present a prima facie claim of his plea counsel's
ineffectiveness. Accordingly, the court had no obligation to conduct an
evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (concluding, if
a prima facie claim is made, an evidentiary hearing on ineffectiveness should be
held).
To the extent we have not already mentioned them, any remaining
arguments presented by defendant lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-0599-22
7