STATE OF NEW JERSEY VS. ANTHONY K. WHITE (11-10-2379, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-4590-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY K. WHITE,
Defendant-Appellant.
____________________________
Argued October 23, 2018 – Decided October 31, 2018
Before Judges Fisher and Hoffman.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 11-10-2379.
Robert C. Pierce, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; William P. Welaj, of counsel and on the
brief).
Nicole L. Campellone, Assistant Prosecutor, argued the
cause for respondent (Damon G. Tyner, Atlantic
County Prosecutor, attorney; Nicole L. Campellone, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Anthony K. White appeals from a May 11, 2017 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm, substantially for the reasons stated by Judge Michael Blee in his cogent
written opinion.
Because Judge Blee's opinion thoroughly and correctly addressed all of
defendant's PCR issues, a brief summary will suffice. In July 2011, the police
came to defendant's motel room in Atlantic City and learned that televisions had
been stolen. A one-count indictment charged defendant with third-degree theft.
The State extended a plea offer for defendant to plead to a disorderly person's
offense. Defendant rejected the offer, but then tried to accept it on the day of
the trial. By that time, the initial plea offer had been revoked. The prosecutor
then extended an offer for defendant to plead to a fourth-degree offense. After
the judge denied defendant a continuance to obtain new counsel, defendant
accepted this offer, entered a guilty plea to fourth-degree theft, and received a
six-month suspended sentence.
Defendant appealed and we affirmed defendant's sentence on an excessive
sentence oral argument calendar. Defendant then filed a motion to withdraw his
guilty plea. The trial court denied the motion, concluding that defendant failed
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to "show a colorable claim of innocence" under State v. Slater, 198 N.J. 145
(2009). Defendant appealed but withdrew the appeal three months later.
Defendant then filed the PCR petition under review. Judge Blee denied
defendant's petition without an evidentiary hearing. This appeal followed.
On this appeal, defendant presents the following arguments:
1. THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE WAS ENTITLED TO
WITHDRAW HIS GUILTY PLEA ON THE
BASIS HE HAD FAILED TO RECEIVE
ADEQUATE LEGAL REPRESENTATION
FROM TRIAL COUNSEL, RESULTING IN A
GUILTY PLEA WHICH HAD NOT BEEN
FREELY, KNOWINGLY AND
VOLUNTARILY ENTERED.
A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF
COUNSEL, EVIDENTIARY HEARINGS
AND PETITIONS FOR
POSTCONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL
REPRESENTATION FROM TRIAL
COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO PRESENT
ANY LEGAL ARGUMENT, LET ALONE
A COGENT LEGAL ARGUMENT, WITH
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RESPECT TO THE DEFENDANT'S
DESIRE FOR A CONTINUANCE TO
OBTAIN PRIVATE COUNSEL IN
LIGHT OF UNEXPECTED
DEVELOPMENTS IN HIS CASE.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL
REPRESENTATION FROM TRIAL
COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAULTY AND
INACCURATE INFORMATION
PROVIDED TO THE DEFENDANT
ASSURING HIM THE STATE'S PLEA
OFFER INVOLVING THE
DISORDERLY PERSONS OFFENSE OF
THEFT WOULD REMAIN AVAILABLE
TO THE DAY OF TRIAL.
D. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL
REPRESENTATION FROM TRIAL
COUNSEL AS A RESULT OF HER
FAILURE TO PREPARE FOR TRIAL.
In his supplemental pro se brief, defendant raises an
additional point:
I. COUNSEL WAS NOT PREPARED FOR
TRIAL, WHICH CAUSED HER TO
REPRESENT THE DEFENDANT AT THE
PLEA HEARING WHILE LABORING UNDER
AN "ACTUAL CONFLICT OF INTEREST"
THAT HAS ADVERSELY AFFECTED HER
PERFORMANCE. THIS IS IN VIOLATION OF
U.S. CONST. AMEND. VI AND THE
DEFENDANT'S PLEA MUST BE VACATED.
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Having reviewed the entire record presented to us, we conclude these
arguments lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We add the following comments.
A defendant’s claim of ineffective assistance of counsel is considered
under the standards established in Strickland v. Washington, 466 U.S. 668, 687
(1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987). The Strickland test applies to challenges to guilty pleas based on alleged
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). A
defendant must show that his attorney failed to provide advice that "was within
the range of competence demanded of attorneys in criminal cases." Id. at 56
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A defendant also
must show "there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial." Id. at
59.
Here, defendant claims he should be permitted to withdraw his plea
because his attorney was deficient and he was forced to enter the plea; however,
this claim is nothing more than a bald assertion. See State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Defendant argues his claim that his
counsel did not adequately prepare for trial was sufficient to entitle him to an
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evidentiary hearing. However these claims were unsupported in the record and
defendant offered provided no affidavit or certification to support this assertion.
Nor does the record contain any evidence that defendant had a colorable claim
of innocence.
As for defendant's argument that counsel misinformed him that the plea
offer would remain available through trial, we agree with Judge Blee's
assessment that "[r]egardless of conversations [defendant] may or may not have
had with his trial counsel, he was made aware that by going on the trial list he
was rejecting the plea offer . . . ." The status arraignment forms signed by
defendant demonstrate he knew of the plea cut off and that he was rejecting an
offer to plead to a disorderly person's offense. At his plea hearing, defendant
did not dispute that the court had confirmed defendant's knowledge and
understanding regarding his previous rejection of the State's plea offer.
As a result, there was no basis to hold an evidentiary hearing on his claims.
State v. Preciose, 129 N.J. 451, 462-63 (1992); R. 3:22-10(b).
Affirmed.
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