STATE OF NEW JERSEY VS. RAJEEM A. SCOTTÂ (11-04-0648, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5624-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAJEEM A. SCOTT,
Defendant-Appellant.
________________________________________________________________
Submitted June 21, 2016 – Decided June 16, 2017
Before Judges Espinosa and Kennedy.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 11-04-0648.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Andrew
R. Burroughs, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from the denial of his petition for post-
conviction relief (PCR) following an evidentiary hearing. We
affirm, substantially for the reasons expressed by Judge Martin
G. Cronin in his oral decision.
Defendant entered a guilty plea to an amended charge of third-
degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2
and N.J.S.A. 2C:12-1(b)(7), pursuant to a plea agreement in which
three other charges were dismissed. At the time defendant entered
his guilty plea, he testified that he agreed with two others to
"beat . . . up" the victim, J.E., "pretty seriously." He admitted
that J.E. was, in fact, beaten up by one or more of the three of
them. Defendant was sentenced to three years' probation and did
not file a direct appeal.
Approximately one year later, he filed a pro se PCR petition
and was assigned counsel. Defendant contended he was denied the
effective assistance of counsel because his attorney failed to
inform him of the severity of the crime, the defenses available
to him, the penal consequences of his conviction and the terms of
his plea agreement, and also failed to conduct an adequate
investigation.
Judge Cronin conducted an evidentiary hearing and provided a
comprehensive statement of reasons for denying the application.
Defendant presents the following arguments in this appeal:
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POINT I
THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED BECAUSE
TRIAL COUNSEL'S TESTIMONY
CONFIRMING DEFENDANT'S CLAIM THAT
THERE WAS AN INADEQUATE PRETRIAL
INVESTIGATON SATISFIED DEFENDANT'S
BURDEN TO PROVE INEFFECTIVE
ASSISTANCE OF COUNSEL BY A
PREPONDERANCE OF THE EVIDENCE.
POINT II
THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED BECAUSE
IT VIOLATED DEFENDANT'S RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT
TO THE UNITED STATES CONSTITUION.
POINT III
THE PCR COURT ERRED IN DENYING
DEFENDANT'S POST-CONVICTION RELIEF
MOTION TO SET ASIDE HIS GUILTY
PLEA PURSUANT TO STATE V. SLATER[1].
We are not persuaded by any of these arguments and affirm.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of
ineffective assistance of counsel, defendant must meet the two-
1
198 N.J. 145 (2009).
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prong test of establishing both that: (l) counsel's performance
was deficient and he or she made errors that were so egregious
that counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; 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 result of the proceeding
would have been different." Strickland, supra, 466 U.S. at 687,
694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
Defendant first argues that his trial counsel was ineffective
for failing to conduct an adequate pretrial investigation. He
states that, at the evidentiary hearing, "trial counsel confirmed
defendant's claim that he failed to conduct any pretrial
investigation, and failed to file a pretrial motion to suppress
the identification of defendant because he believed that there
were no viable defense issues."
In his appellate brief, defendant has not identified any
pretrial investigation that would have produced result-changing
evidence. Without such context, his contention that he would not
have entered a guilty plea if counsel had conducted an adequate
pretrial investigation rings hollow.
The thrust of this argument is that counsel was ineffective
for failing to file a motion challenging the victim's
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identification of defendant. At the evidentiary hearing, trial
counsel explained in detail why he did not "think there was any
viable legal challenge" to the identification. He noted the police
witnessed defendant and another person attacking someone and gave
chase. One of the officers caught defendant and returned him to
the victim, who identified him at the scene. He noted further the
victim and defendant knew each other; they had gone to school
together and communicated on social media. At their first meeting,
defendant told trial counsel the victim wanted to drop the charges
against him. Trial counsel reviewed the requirements for a
successful motion under United States v. Wade, 388 U.S. 218, 87
S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and testified he saw no
grounds for relief.
Judge Cronin found that defendant failed to satisfy either
prong under Strickland. We agree.
Defendant also asked to set aside his guilty plea. During
the hearing, defendant testified he lied when he entered his plea
because he wanted to get probation rather than face a second-
degree sentence. In considering this request, Judge Cronin applied
the factors set forth in Slater, supra, 198 N.J. at 157-58:
(1) whether the defendant has asserted a
colorable claim of innocence; (2) the nature
and strength of defendant's reasons for
withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would
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result in unfair prejudice to the State or
unfair advantage to the accused.
Addressing the first factor, Judge Cronin read the transcript
of defendant's guilty plea and found it belied his claim of
innocence. In addition, Judge Cronin reviewed the discovery
available to defendant at the time the guilty plea was entered,
which he found "wholly inconsistent with innocen[c]e."
Turning to defendant's professed reason for seeking to
withdraw his guilty plea – that his counsel was ineffective during
the plea-bargaining process – Judge Cronin found this challenge
meritless. He found defendant's assertions that he was unaware
of the penal consequences of his conviction and the fact he might
lose his employment were refuted by his testimony when he entered
his guilty plea as well as the plea form.
Finally, Judge Cronin noted the plea was entered pursuant to
an agreement. Because defendant had failed to present a colorable
claim of innocence or state a valid reason for withdrawal, there
was no need to balance factors in favor of withdrawal against
possible prejudice to the State. He concluded defendant's motion
to withdraw his guilty plea lacked merit.
The trial court's denial of defendant's motion is subject to
review for abuse of discretion. State v. Mustaro, 411 N.J. Super.
91, 99 (App. Div. 2009). We discern none here.
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Affirmed.
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