STATE OF NEW JERSEY VS. JARRET J. HOUSTONÂ (10-06-0653, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3025-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JARRET J. HOUSTON a/k/a
JARRETT J. HOUSTON,
Defendant-Appellant.
____________________________
Submitted March 15, 2017 – Decided July 21, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 10-06-0653.
Joseph E. Krakora, Public Defender, attorney
for appellant (Abby P. Schwartz, Designated
Counsel, on the brief).
Robert D. Bernardi, Burlington County
Prosecutor, attorney for respondent (Jennifer
Paszkiewicz, Assistant Prosecutor, of
counsel; Boris Moczula, Legal Assistant, on
the brief).
PER CURIAM
Defendant appeals from the January 28, 2015 order denying his
petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
On April 25, 2011, defendant pled guilty to count one of
Burlington County Indictment No. 10-06-0653, charging second-
degree robbery, N.J.S.A. 2C:15-1(a)(1). In exchange, the State
recommended dismissal of the remaining two counts of the
indictment1 and that defendant be sentenced in the third-degree
range, N.J.S.A. 2C:44-1(f)(2), to a term of three years
imprisonment subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2.
The charge stemmed from defendant, an admitted drug dealer,
concocting a scheme in which he and a co-defendant would sell fake
crack cocaine in order to recover money they were owed from prior
drug sales. During the pre-arranged transaction, defendant
assaulted one of the two buyers once he realized they paid less
money for the counterfeit drugs than had been agreed. At his plea
allocution, defendant admitted that "in the course of committing
a theft," he "purposely and knowingly" "inflicted bodily injury"
on the victim "which resulted in her hospitalization[.]" After
determining that there was an adequate factual basis for the plea
1
Each of the remaining two counts charged third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(7).
2 A-3025-14T4
"and that the plea [was] made voluntarily, not as a result of any
threats or of any promises or inducements not disclosed on the
record, and with an understanding of the nature of the charge and
the consequences of the plea[,]" R. 3:9-2, the court accepted
defendant's guilty plea.
Prior to sentencing, defendant notified his attorney in
writing that he wanted to withdraw his guilty plea because he felt
he "had inadequate [counsel]" who was not "prepared for trial."
After consulting with his supervisor who agreed that there was "no
legal basis" for a withdrawal motion, defendant's attorney
notified defendant in writing that
[t]here is no legal or factual basis for
filing the [m]otion to [v]acate the [g]uilty
[p]lea so I will not be filing that motion.
You will recall you were under oath when you
gave answers to the [c]ourt[']s questions.
You also indicated that you understood that
once the plea was entered you could not change
your mind. You also indicated that you were
entering the plea freely and voluntarily and
with full knowledge of the results of the
plea.
On July 8, 2011, when defendant appeared for sentencing, his
attorney advised the court "[w]hen we were here the last time my
client was thinking about filing a motion to vacate. He's not
going to do that." When the court gave defendant an opportunity
to speak at sentencing, he declined. Thereafter, defendant was
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sentenced in accordance with the terms of the plea agreement.
Defendant appealed his sentence, which we considered on our
Excessive Sentence Oral Argument (ESOA) calendar pursuant to Rule
2:9-11, and affirmed. State v. Houston, No. A-3047-11 (App. Div.
Sept. 27, 2012).
Defendant filed a timely PCR petition, and was assigned
counsel who submitted a brief supported by defendant's four-page
certification dated July 28, 2014. Defendant argued to the PCR
court that his attorney was ineffective for (1) allowing him to
plead guilty to second-degree robbery because the facts and
evidence do not support a conviction for that offense; and (2)
failing to file a motion to withdraw his guilty plea because the
factual basis for the plea was legally inadequate to constitute
second-degree robbery.
In his certification, defendant admitted that while he led
the victim "to believe that [he and his co-defendant] were going
to sell them drugs[,]" he planned "to sell [her] fake drugs in
order to try and get the money [he] was owed." According to
defendant, "[t]he fake drugs were soap shavings which look[ed]
like crack cocaine." Defendant certified that when he realized
that the money paid "was not the agreed upon amount for the
deal[,]" he "confronted" the victim, "[t]he situation quickly
4 A-3025-14T4
escalated and the [victim was] assaulted." Defendant denied that
he or his co-defendant took any money after the assault.2
Defendant certified that he wished to withdraw his guilty
plea because he did not "steal anything" from the victim and he
"did not rob" the victim but was pressured to plead guilty to
robbery by his family and his attorney, who explained that he "was
facing a very long prison sentence if [he] was convicted at trial."
According to defendant, at sentencing, when his attorney refuse[d]
"to ask the court to withdraw [his] guilty plea[,] [he] did not
feel like there was anything else [he] could do." Defendant also
certified that neither his attorney nor the court explained "all
of the conditions of mandatory supervision after release from
custody" and "[h]ad [he] been aware of all of the conditions that
went along with mandatory supervision, [he] would not have accepted
the plea."
The court determined that defendant failed to establish a
prima facie case of ineffectiveness and was therefore not entitled
to an evidentiary hearing. Specifically, the court determined
that defendant "entered into his plea agreement with knowledge of
the terms, freely, and was not under the influence of any substance
2
In an incriminating statement to police during a custodial
interrogation, defendant admitted that the buyers gave his co-
defendant $25 for the "beat bags" prior to the assault.
5 A-3025-14T4
or pressure when he plead." Further, according to the court,
defendant's factual basis adequately supported the second-degree
robbery conviction because defendant "admitted that he inflicted
serious bodily injury on one of the victims in an attempt to
receive money from her." The court determined further that "it
was within the attorney's discretion not to file a motion to
withdraw [defendant's] guilty [plea]" since there was no legal
basis for such a motion.
In addition, treating defendant's PCR petition as a belated
motion to withdraw his guilty plea, the court determined that
there was no basis for relief under State v. Slater, 198 N.J. 145(2009). The court concluded that defendant had no colorable claim
of innocence, and received a favorable plea bargain and the lowest
legal sentence he could have received for the offense charged.
Further, the court noted that considering the age of the case,
allowing defendant to withdraw from his guilty plea would hamper
the State's ability to effectively prosecute the case.
This appeal followed. On appeal, defendant raises the
following points for our consideration:
POINT I
COUNSEL'S FAILURE TO FILE A MOTION TO WITHDRAW
[DEFENDANT'S] GUILTY PLEA WITHOUT ANY
DISCUSSION WITH [DEFENDANT], WAS INEFFECTIVE
ASSISTANCE OF COUNSEL, IN VIOLATION OF
6 A-3025-14T4
[DEFENDANT'S] RIGHTS TO A FAIR TRIAL AND TO
DUE PROCESS.
POINT II
[DEFENDANT] SHOULD BE PERMITTED TO WITHDRAW
HIS GUILTY PLEA . . . IN COMPLIANCE WITH HIS
RIGHTS TO A FAIR TRIAL AND DUE PROCESS.
We review the PCR court's findings of fact under a clear
error standard, and conclusions of law under a de novo standard.
See State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied,
545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where
the PCR court's findings of fact are based on "live witness
testimony" we review such findings to determine whether they are
supported by sufficient credible evidence in the record. State
v. Nash, 212 N.J. 518, 540 (2013). However, where, as in this
case, "no evidentiary hearing has been held, we 'may exercise de
novo review over the factual inferences drawn from the documentary
record by the [PCR judge].'" State v. Reevey, 417 N.J. Super.
134, 146-47 (App. Div. 2010) (quoting Harris, supra, 181 N.J. at
421), certif. denied, 206 N.J. 64 (2011). While "[a]ssessing
[ineffective assistance of counsel] claims involves matters of
fact, . . . the ultimate determination is one of law[.]" Harris,
supra, 181 N.J. at 419.
Defendant argues that the PCR court erred in denying his PCR
petition and an evidentiary hearing on his claims of ineffective
7 A-3025-14T4
assistance of trial counsel. Defendant contends that his attorney
was ineffective because he dismissed defendant's request to
withdraw his guilty plea without any input from defendant.
Defendant argues further that once he communicated his displeasure
with his attorney's performance and his belief that he was
pressured to accept the plea offer, "a conflict of interest arose"
and a new attorney "should have been assigned" to file a motion
to withdraw his guilty plea. According to defendant, he was
prejudiced by counsel's deficient performance because "had the
motion been filed, there is more than a slight chance that it
would have been granted" and "[t]hen he could have plead guilty
to the assault which he indicated that he had committed or if
there was no such offer, gone to trial on the charge of robbery."
In the alternative, defendant asserts that this matter "should be
remanded for a hearing on the four factors of Slater." We
disagree.
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.), certif. denied, 162 N.J. 199 (1999).
Rather, trial courts should grant evidentiary hearings only if the
defendant has presented a prima facie claim of ineffective
assistance, material issues of disputed fact lie outside the
record, and resolution of the issues necessitate a hearing. R.
8 A-3025-14T4
3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013), cert.
denied, 228 N.J. 502 (2017). "Rule 3:22-10 recognizes judicial
discretion to conduct such hearings." State v. Preciose, 129 N.J.
451, 462 (1992).
A PCR court deciding whether to grant an evidentiary hearing
"should view the facts in the light most favorable to a defendant
to determine whether a defendant has established a prima facie
claim." Id. at 462-63. "To establish a prima facie claim of
ineffective assistance of counsel, a defendant must demonstrate
the reasonable likelihood of succeeding under the test set forth
in [Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 698 (1984)], and United States v. Cronic,
466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which [our
Supreme Court] adopted in State v. Fritz, 105 N.J. 42, 58 (1987)."
Id. at 463.
Under the Strickland standard, a defendant must make a two-
part showing. A defendant must show that trial counsel's
performance was both deficient and prejudicial. State v. Martini,
160 N.J. 248, 264 (1999). The performance of counsel is
"deficient" if it falls "below an objective standard of
reasonableness" measured by "prevailing professional norms."
Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064-65, 80
L. Ed. 2d at 693-94. This standard of "reasonable competence,"
9 A-3025-14T4
Fritz, supra, 105 N.J. at 60, "does not require the best of
attorneys[.]" State v. Davis, 116 N.J. 341, 351 (1989).
A defendant must also show that the deficient performance
prejudiced the defense. Under this prong, to set aside a guilty
plea based on ineffective assistance of counsel, defendant must
establish "that there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty and
would have insisted on going to trial." State v. DiFrisco, 137
N.J. 434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)), cert. denied,
516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). However,
to obtain relief, a defendant "'must convince the court that a
decision to reject the plea bargain would have been rational under
the circumstances.'" State v. O'Donnell, 435 N.J. Super. 351, 371
(App. Div. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 372,
130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).
"Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable." Fritz,
supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687,
104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant bears the
burden of proving both prongs of an ineffective assistance of
counsel claim by a preponderance of the evidence. State v. Gaitan,
10 A-3025-14T4
209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct.
1454, 185 L. Ed. 2d 361 (2013).
Where a defendant asserts his or her attorney was ineffective
for failing to file a motion, he or she must establish that the
motion would have been successful. "It is not ineffective
assistance of counsel for defense counsel not to file a meritless
motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). We
acknowledge that the better course would have been for plea counsel
to withdraw, and for new counsel to have been retained or appointed
to evaluate and, if appropriate, advocate for defendant's motion
to withdraw his guilty plea. The failure to implement such a
procedure can result in prejudice to a defendant. See State v.
Barlow, 419 N.J. Super. 527, 535 (App. Div. 2011) (noting that
R.P.C. 1.2(a) implicitly requires "that counsel abide by a client's
determination, after a plea of guilty has been entered, to seek
its withdrawal."). Nonetheless, under the particular facts of
this case, we are satisfied that plea counsel's failure to file a
motion to withdraw defendant's guilty plea, which is the gravamen
of defendant's contention, did not result in any prejudice to
defendant under the second prong of Strickland.
In all plea withdrawal cases, whether evaluated under the
"interests of justice" standard of Rule 3:9-3(e), or the "correct
a manifest injustice" standard of Rule 3:21-1, "'the burden rests
11 A-3025-14T4
on the defendant, in the first instance, to present some plausible
basis for his request, and his good faith in asserting a defense
on the merits.'" Slater, supra, 198 N.J. at 156 (quoting State
v. Smullen, 118 N.J. 408, 416 (1990)). "Generally, representations
made by a defendant at plea hearings concerning the voluntariness
of the decision to plead, as well as any findings made by the
trial court when accepting the plea, constitute a 'formidable
barrier' which defendant must overcome before he will be allowed
to withdraw his plea." State v. Simon, 161 N.J. 416, 444 (1999)
(quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621,
1629, 52 L. Ed. 2d 136, 147 (1977)).
A trial court must consider and balance four factors when
evaluating a motion to withdraw a guilty plea: "(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
result in unfair prejudice to the State or unfair advantage to the
accused." State v. Munroe, 210 N.J. 429, 442 (2012) (quoting
Slater, supra, 198 N.J. at 157-58). "No single Slater factor is
dispositive; 'if one is missing, that does not automatically
disqualify or dictate relief.'" State v. McDonald, 211 N.J. 4,
16-17 (2012) (quoting Slater, supra, 198 N.J. at 162).
12 A-3025-14T4
While we are certainly cognizant of all the Slater factors,
importantly, defendant has not asserted a colorable claim of
innocence. Rather, in his July 28, 2014 certification and his
earlier confession to law enforcement, he admits assaulting the
victim in the course of committing what amounts to a theft by
deception. Such conduct bespeaks the very conduct that supports
a second-degree robbery conviction and does not thereby establish
a "colorable claim of innocence[.]" Slater, supra, 198 N.J. at
158.
Under N.J.S.A. 2C:15-1, "[a] person is guilty of robbery if,
in the course of committing a theft, he . . . inflicts bodily
injury or uses force upon another[.]" N.J.S.A. 2C:15-1(a)(1).
"An act shall be deemed to be included in the phrase 'in the course
of committing a theft' if it occurs in an attempt to commit theft
or in immediate flight after the attempt or commission." N.J.S.A.
2C:15-1(a). "A person is guilty of theft if he violates any of
the substantive sections of Chapter 20 of the Code, N.J.S.A. 2C:20-
1 to -22. One of those substantive provisions, N.J.S.A. 2C:20-4,
defines theft by deception." State v. Talley, 94 N.J. 385, 390
(1983).
Under N.J.S.A. 2C:20-4, "[a] person is guilty of theft if he
purposely obtains property of another by deception. A person
deceives if he purposely . . . [c]reates or reinforces a false
13 A-3025-14T4
impression . . . as to law, value, intention or other state of
mind[.]" N.J.S.A. 2C:20-4(a). In Talley, supra, 94 N.J. at 393,
our Supreme Court determined that "any conduct denominated as
theft is within the four corners of a robbery indictment." Here,
the mere fact that the theft was accomplished by deception rather
than an unlawful taking, as contemplated in N.J.S.A. 2C:20-3(a),
does not relieve defendant of culpability for robbery. Cf. Talley,
supra (holding that a defendant indicted for armed robbery could
be convicted of theft by deception predicated on the victims'
account that defendant forced them at gunpoint to surrender their
wallets, but defendant testified at trial that he sold the victims
herbal tea instead of marijuana).
Applying these principles, we are persuaded that the PCR
court properly declined to conduct an evidentiary hearing and
properly denied defendant's petition for PCR. We further conclude
that the PCR court "correctly viewed defendant's application as
both a motion to withdraw [his] plea, and a petition for PCR based
on ineffective assistance of counsel." O'Donnell, supra, 435 N.J.
Super. at 368. Therefore, we discern no abuse of discretion in
the PCR court's denial of defendant's motion to withdraw his guilty
plea.
Affirmed.
14 A-3025-14T4