STATE OF NEW JERSEY VS. CASSEY GROSS(07-11-2589, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-1716-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CASSEY GROSS,1
Defendant-Appellant.
__________________________
Submitted January 11, 2017 – Decided October 10, 2017
Before Judges Fuentes and Simonelli.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
07-11-2589.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief; Anthony Puglisi, Legal
Assistant, on the brief).
1
Referenced in the record also as Cassey Nicole Gross and Cassey
N. Gross.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant Cassey Gross appeals from the order of the Criminal
Part denying her post-conviction relief (PCR) petition. We affirm.
On December 16, 2009, defendant negotiated an agreement with
the State through which she agreed to plead guilty to count one
of Monmouth County Indictment 07-11-2589, which charged her with
first degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:11-3a. In exchange, the State agreed to recommend
that the court sentence defendant to a term of fifteen years, with
an eighty-five percent period of parole ineligibility and five
years of parole supervision as mandated by the No Early Release
Act, N.J.S.A. 2C:43-7.2. The State also agreed to dismiss count
two of the Indictment, which charged defendant with first degree
murder, N.J.S.A. 2C:11-3a(1)/(2). On March 9, 2010, the court
sentenced defendant in accordance with the terms of the plea
agreement.
Defendant appealed through the summary process provided under
Rule 2:9-11. Defendant challenged both the length of the sentence
and the adequacy of the factual basis she gave at the plea hearing.
After hearing oral argument as provided by Rule 2:9-11, we
affirmed. State v. Cassey Gross, Docket A-5887-09 (App. Div. Oct.
20, 2011). Defendant thereafter filed a pro se PCR petition on
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October 24, 2012. Court-assigned PCR counsel filed an amended
petition and supporting brief arguing defendant received
ineffective assistance of trial counsel because the factual basis
she provided at the plea hearing was insufficient.
On December 20, 2013, the court-assigned PCR counsel withdrew
as attorney of record for defendant in this case. The court
assigned new counsel to represent defendant in the prosecution of
this PCR petition. In a certification attached to his request to
withdraw, the first PCR counsel represented to the court that he
had given replacement counsel all of the discovery in his
possession. Replacement counsel acknowledged receipt of this
discovery material, which his predecessor had originally obtained
from the Monmouth County Prosecutor's Office.
At a status conference held by the PCR judge on June 9, 2014,
defendant's new PCR counsel represented to the court that the
prosecutor had not provided him with all of the discovery in the
case. In a letter dated June 12, 2014, the Assistant Prosecutor
assigned to this case apprised the new PCR counsel that it was
"not the policy of this Office to duplicate an entire case file
in post-conviction relief proceedings[.]" To illustrate the
magnitude of the problem, the prosecutor noted that the file in
this case "consists of five boxes of documents." Finally, the
prosecutor argued that pursuant to State v. Marshall, 148 N.J. 89,
3 A-1716-14T1
268-71, cert. denied, 522 U.S. 850, 118 S. Ct. 140 (1997), a
defendant "has no automatic right to such discovery on PCR."
The prosecutor nevertheless advised PCR counsel that the
State would be willing to consider a written request to provide
"specific, relevant documents" that PCR counsel did not have in
his possession and was not otherwise able to obtain from the
attorney who represented defendant at the time she pled guilty.
In a letter dated June 16, 2014, PCR counsel rejected the
prosecutor's proposal and requested to schedule a date and time
"when I can come to your office and review the aforementioned
documents. I will then be able to identify the specific documents
of which I require copies." By letter dated June 18, 2014, the
prosecutor rejected PCR counsel's request and cited the Supreme
Court's admonition in Marshall concerning the right to discovery
in PCR proceedings.
[O]ur Court Rules concerning petitions for
PCR, see R. 3:22-1 to -12, do not contain any
provision authorizing discovery in PCR
proceedings. Moreover, the general discovery
obligations contained in the Rules Governing
Criminal Practice, see R. 3:13-2 to -4, do not
extend to post-conviction proceedings.
Defendant relies on Rule 3:13-3(g), which
refers to parties' "[c]ontinuing [d]uty to
[d]isclose" discoverable materials. However,
that obligation continues only "during trial."
Thus, our Court Rules do not explicitly
authorize the discovery requested by defendant
in this case.
4 A-1716-14T1
[Marshall, supra, 148 N.J. at 268.]
On June 25, 2014, defendant moved before the PCR judge to
obtain an order to compel the State to provide discovery. In
addition to the written submissions of the parties, the judge
heard oral argument from counsel on August 29, 2014. Without
citing legal authority, PCR counsel argued the State had an
obligation to provide discovery in a PCR proceeding. PCR counsel
asked the court that "the State be made to copy the entire file,
every scrap of paper, and get it to my office within seven days,
and then we can set this down for a hearing." Citing the Court's
holding in Marshall, the PCR judge denied defendant's motion.
Defendant's PCR petition came before the court for oral
argument on October 17, 2014. PCR counsel argued defendant
received ineffective assistance when both her trial and appellate
counsel failed to challenge the sufficiency of the factual basis
she gave at the plea hearing. PCR counsel also claimed that
defendant's trial counsel should have investigated the case to
determine what role, if any, defendant played in the conspiracy
to kill the victim. The PCR judge denied the petition in an order
dated October 22, 2014. The judge explained the basis of his
ruling in a memorandum of opinion attached to the order.
Defendant now appeals raising the following arguments:
5 A-1716-14T1
POINT ONE
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED AND THE MATTER REMANDED FOR
AN EVIDENTIARY HEARING BECAUSE THE ISSUES
ADVANCED IN DEFENDANT'S PETITION, INCLUDING
TRIAL COUNSEL'S SILENCE DURING THE
UNTRUSTWORTHY PRO FORMA PLEA ALLOCUTION, AND
TRIAL COUNSEL'S FAILURE TO INTERVIEW CO-
DEFENDANT NIKKI MOORE, PRESENTED THE COURT
WITH PRIMA FACIE PROOF OF INEFFECTIVE
ASSISTANCE OF COUNSEL BY A PREPONDERANCE OF
THE EVIDENCE.
POINT TWO
DEFENDANT MADE A PRIMA FACIE SHOWING OF
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
BECAUSE APPELLATE COUNSEL'S DECISION TO
PRESENT DEFENDANT'S APPEAL BEFORE THE
EXCESSIVE SENTENCE PANEL INSTEAD OF PURSUING
A PLENARY APPEAL DEPRIVED DEFENDANT OF THE
OPPORTUNITY TO ARGUE THAT THE FACTUAL BASIS
FOR HER PLEA WAS INSUFFICIENT.
POINT THREE
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 CONSTITUTION.
POINT FOUR
DEFENDANT'S POST-CONVICTION RELIEF MOTION TO
COMPEL DISCOVERY SHOULD HAVE BEEN GRANTED.
A PCR petition is our State's analogue to the federal writ
of habeas corpus. See State v. Afanador, 151 N.J. 41, 49 (1997).
We review a claim of ineffective assistance of counsel under the
two-prong test established by the United States Supreme Court in
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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), and subsequently adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must
demonstrate that defense counsel's performance was deficient.
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693. Second, she must show there exists "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has
consistently upheld and applied these standards over the thirty
years since Fritz was decided. See State v. Pierre-Louis, 216
N.J. 577, 579 (2014).
In determining a claim of ineffective assistance of counsel
in a case in which a defendant pled guilty, "the issue is whether
it is ineffective assistance of counsel for counsel to provide
misleading, material information that results in an uninformed
plea, and whether that occurred here." State v. Nunez-Valdez, 200
N.J. 129, 139-40 (2009). Here, defendant challenges the
sufficiency of the factual basis she gave in support of her guilty
plea to first degree conspiracy to commit murder. She claims her
trial attorney should have challenged the factual basis.
Our standard of review concerning the sufficiency of a factual
basis to support a guilty plea is de novo because:
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An appellate court is in the same position as
the trial court in assessing whether the
factual admissions during a plea colloquy
satisfy the essential elements of an offense.
When reviewing the adequacy of the factual
basis to a guilty plea, the trial court is not
making a determination based on witness
credibility or the feel of the case,
circumstances that typically call for
deference to the trial court.
[State v. Tate, 220 N.J. 393, 403 (2015).]
Defendant pled guilty to the crime of conspiracy to commit
murder. Under our criminal code,
a. A person is guilty of conspiracy with
another person or persons to commit a crime
if with the purpose of promoting or
facilitating its commission he:
(1) Agrees with such other person or persons
that they or one or more of them will engage
in conduct which constitutes such crime or an
attempt or solicitation to commit such crime;
or
(2) Agrees to aid such other person or persons
in the planning or commission of such crime
or of an attempt or solicitation to commit
such crime.
[N.J.S.A. 2C:5-2 (emphasis added).]
The record of the plea hearing shows defendant admitted to being
a member of "the Bloods," a notoriously violent street gang.
Defendant was present and participated in the meeting where the
conspiracy to murder the victim was formed. The conspirators,
including defendant, designated who would actually carry out the
8 A-1716-14T1
plan to kill the victim. The plan was executed and resulted in
the victim's death. Defendant's answers under oath in response
to her attorney's questions at the plea hearing satisfied the
elements of conspiracy under N.J.S.A. 2C:5-2a. We discern no
legal grounds to question the adequacy of defendant's factual
basis.
Even if we were to conclude trial counsel's failure to
challenge the adequacy of the factual basis satisfies the first
prong under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at
2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58, there is
no evidence from which to find this would have caused defendant
to reject the plea agreement. Independent of this analysis, we
also agree with the State's argument that defendant is procedurally
barred from raising this issue in a PCR petition pursuant to Rule
3:22-5. The record of the oral argument conducted as part of
defendant's direct appeal under Rule 2:9-11 clearly shows
appellate counsel raised the adequacy of defendant's factual basis
as an issue. We rejected this argument and affirmed the conviction
and sentence.
Defendant's remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). We
affirm substantially for the reasons expressed by the PCR judge
in his memorandum of opinion dated October 22, 2014.
9 A-1716-14T1
As a final note, we are compelled to offer the following
comment with respect to PCR counsel's demand that the State provide
discovery in this case. As a starting point, PCR counsel's legal
position completely ignored the consistent, unequivocal standards
established by our Supreme Court twenty years ago in Marshall.
These standards were recently reaffirmed by Chief Justice Rabner
on behalf of a unanimous Court:
The scope of permissible discovery at that
stage is limited. "[O]nly in the unusual case
will a PCR court invoke its inherent right to
compel discovery." State v. Marshall, 148
N.J. 89, 270, cert. denied, 522 U.S. 850, 118
S. Ct. 140, 139 L. Ed. 2d 88 (1997).
As this Court has explained, "[t]he filing of
a petition for PCR is not a license to obtain
unlimited information from the State, but a
means through which a defendant may
demonstrate to a reviewing court that he was
convicted or sentenced in violation of his
rights." Ibid. (citing R. 3:22-2). As a
result, "any PCR discovery order should be
appropriately narrow and limited." Ibid.(citations omitted). This Court has also
directed that unless there are exceptional
circumstances, "a defendant seeking to inspect
State files should identify the specific
documents sought for production." Id. at 271,
690 A.2d 1. A PCR judge may view those
documents in camera before deciding whether
to order their disclosure. Ibid. The PCR
judge's discovery order is reviewed on appeal
for abuse of discretion. See id. at 272.
To obtain PCR relief, defendants must carry
"the burden of proving that barring the
petition would lead to injustice." State v.
Mitchell, 126 N.J. 565, 587 (1992) (citation
10 A-1716-14T1
omitted). To make that assessment, "courts
will look to whether the judicial system has
provided the defendant with fair proceedings
leading to a just outcome." Ibid. Although a
defendant need not prove that "the issue of
concern cost him the case, . . . 'there should
at least be some showing that . . . [the
alleged violation] played a role in the
determination of guilt.'" Ibid.[State v. Herrerra, 211 N.J. 308, 328-29
(2012).]
Although legal principles are subject to continuous revision
by the nature of our adversary system, PCR counsel should have
adopted a less strident, more deferential position to the rule of
law. The prosecutor's response, by contrast, was in keeping with
the highest standard of congeniality and professionalism. This
is particularly noteworthy considering that "[t]he primary duty
of a prosecutor is not to obtain convictions, but to see that
justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987).
Affirmed.
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