STATE OF NEW JERSEY VS. HARRY L. CAVER (09-12-1132, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1625-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HARRY L. CAVER, a/k/a
ROBERT CAVER, ROBERT L.
CAVER, ROBERT CAVE, ROBERT
LOUIS, and HARRY CARVER,
Defendant-Appellant.
_______________________________
Submitted March 4, 2019 – Decided July 3, 2019
Before Judges Haas and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 09-12-1132.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Reana Garcia,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
This post-conviction relief (PCR) appeal returns to us following our
remand for an evidentiary hearing. After conducting a hearing, the PCR judge
denied defendant's claim that trial counsel was ineffective in the manner he
represented him during plea negotiations.
Defendant argues in a single point:
[DEFENDANT] IS ENTITLED TO RELIEF ON HIS
CLAIM THAT COUNSEL WAS INEFFECTIVE BY
FAILING TO NEGOTIATE HIS PLEA
ADEQUATELY SUCH THAT HE WAS FORCED TO
PROCEED TO TRIAL AND RECEIVE A
LENGTHIER SENTENCE THAN THAT OFFERED
DURING PLEA NEGOTIATIONS.
Because the judge's factual and credibility determinations that a plea offer of a
five-year prison term was not extended was supported by sufficient credible
evidence in the record, we affirm.
The procedural history and trial evidence are detailed in our opinions
affirming defendant's conviction on direct appeal, State v. Caver, No. A-2852-
11 (App. Div. Feb. 27, 2013), and remanding his PCR petition for an evidentiary
hearing, State v. Caver, No. A-1758-14 (App. Div. Apr. 26, 2017), and in the
PCR judge's written opinion dated September 5, 2017. A summary will suffice
here.
A-1625-17T4
2
In August 2009, defendant was indicted for various offenses arising from
the sale of controlled dangerous substances (CDS). According to the pre-trial
memorandum, defendant rejected the State's offer that he plead guilty to third-
degree distribution of CDS in exchange for the State's recommended dismissal
of the other charges and a recommended prison term of eight years with forty-
two months of parole ineligibility. The memorandum also stated that defendant
qualified for an extended term sentence, and that the rejection of the plea offer
could result in a more severe sentence up to the maximum allowed if he was
convicted after trial. After defendant failed to appear for trial, the trial
proceeded without him and he was found guilty of all charges; the most serious
being second-degree distribution of CDS within 500 feet of public housing,
N.J.S.A. 2C:35-7.1. He was later sentenced to an extended prison term of twenty
years with ten years of parole ineligibility.
Following denial of defendant's appeal of his conviction and sentence, he
filed a PCR petition alleging numerous claims of ineffective assistance of
counsel. However, this appeal only pertains to the claim that counsel was
ineffective for failing to negotiate a five-year flat term plea offer, thereby
forcing defendant to proceed to trial, resulting in his conviction and an extended
term of twenty years with ten years of parole ineligibility. The judge denied
A-1625-17T4
3
PCR without an evidentiary hearing. We determined that an evidentiary hearing
was necessary because there were questions concerning the discussions that took
place regarding plea negotiations that could only be resolved at an evidentiary
hearing.
After conducting an evidentiary hearing at which defendant's trial counsel
and the assistant prosecutor who tried the case testified, the PCR judge, who
also presided over the trial and sentenced defendant, rejected those claims.
Finding both witnesses credible, the judge issued a well-reasoned written
decision determining:
[Defendant] has provided no evidence that any formal
plea offer was credibly offered by the [S]tate prior to
going to trial but subsequent to the plea[] cut[-]off,
pursuant to the pre-trial memorandum. [Defense
counsel] and [the assistant prosecutor] credibly
testified that the [defendant] was unwilling to accept
[an] offer by the [S]tate requiring custodial time.
Further, [the assistant prosecutor] could not recall
having made any offer other than an offer that
contained prison time. [Defendant], was advised by the
[pre-trial judge] that by signing the pre-trial
memorandum, he was foregoing any offers existing.
[Defendant] failed to substantiate any other offer that
was amenable to him because of the attached prison
requirement.
A-1625-17T4
4
Hence, citing Lafler v. Cooper, 566 U.S. 156, 162 (2012), the judge
reasoned that defendant failed to demonstrate there was a plea offer that was
amenable to him.
On this appeal, our review of the PCR judge's decision is limited.
When reviewing a PCR court's determination, we
generally defer to the court's factual findings, including
credibility determinations, if they are supported by
adequate, substantial and credible evidence. However,
we review legal issues de novo. Finally, when
considering mixed questions of law and fact, we defer
to supported factual findings, but review de novo the
lower court's application of any legal rules to such
factual findings.
[State v. L.A., 433 N.J. Super. 1, 17 (App. Div. 2013)
(internal quotations and citations omitted).]
After reviewing the record, we find no basis to second-guess the judge's
evaluation of witness credibility, and we conclude that his decision is supported
by substantial credible evidence. See ibid. Based on the facts as he found them,
we agree that defendant's trial counsel did not render ineffective assistance.
Rather, counsel communicated the State's plea offers to defendant, which
defendant chose not to accept and took the risk of going to trial, which in
hindsight was not prudent. Accordingly, we affirm substantially for the reasons
expressed by the judge in his cogent decision.
Affirmed.
A-1625-17T4
5