Opinion
DOCKET NO. A-3620-12T3
06-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PATRICK JULNEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-11-0986. Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This case returns to us after remand. See State v. Julney, No. A-3754-09 (App. Div. Feb. 10, 2012) (Julney I). Defendant Patrick Julney again appeals from the denial of his pre-sentence motion to vacate his plea to two counts of first-degree robbery, N.J.S.A. 2C:15-1. He also argues the trial court erred in rejecting his claim that his trial counsel was ineffective by failing to pursue a motion to suppress the fruits of the traffic stop of the vehicle he was driving. Julney also renews the argument raised, but not reached in Julney I, that his sentence was excessive.
I.
The robbery and related charges arose out of a home invasion and robbery in Elizabeth on July 17, 2007. We reviewed the facts at length in Julney I, and reviewed and supplemented them in our opinion affirming the conviction of Keyshon Sowell, one of the four co-defendants indicted along with Julney. State v. Sowell, No. A-3568-09 (App. Div. Oct. 8, 2013). The record before us now is supplemented by various documents provided in discovery, including witness and victim interviews, and various police reports. Based on our review, there is substantially more evidence of Julney's participation in the robbery than was included in the record in Julney I.
In Julney I, we were under the impression that a testimonial hearing was not held regarding the motion to suppress, as no transcript was supplied. Julney I, supra, slip op. at 16, n.4. However, we were mistaken. We reviewed the testimony at the suppression hearing in Sowell, supra, slip op. at 5-9.
In addition to Julney and Sowell, the State alleged that Tyrone Lanier, Barry Porter, Jr., and Cheryl D. Milligan were involved in the home invasion. The adult female victims identified the male attackers as dressed in jeans and white tee-shirts, with the sleeves cut off and used as face masks. One of the victims called 9-1-1. As police approached the area, the suspects fled.
The circumstances of the arrests of Porter and Sowell remain subject to conflicting accounts. According to the testimony at the suppression hearing, two officers chased two suspects on foot. One suspect was arrested while still on foot, and another escaped and was arrested in a Dodge minivan owned and driven by Milligan. The police witnesses at the suppression hearing did not clearly identify who was arrested in the minivan and who on foot. One police report stated the person arrested on foot was Porter. Another stated it was Sowell. A police witness at the Wade hearing initially stated Porter was arrested on foot, then, upon being refreshed by a report, stated that Porter was arrested in the minivan along with Milligan, and Sowell was arrested on foot. Julney I, supra, slip op. at 10-11. Pursuant to a search warrant, over $900 was seized from the minivan — allegedly the proceeds of the robbery — along with a sleeveless tee-shirt found on the back seat.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1929, 18 L. Ed. 2d 1149 (1967).
Julney's arrest is described in a report by the named arresting officer. According to his report, Julney was arrested while driving a Chevrolet Suburban. Lanier was his passenger, and was wearing a white tee-shirt with both sleeves ripped off. According to the arresting officer's report, Julney was wearing a white tank top. One property report confirmed that fact, but stated he wore "blue jeans"; another property report stated Julney was wearing a tee-shirt, without reference to torn sleeves. Lanier reportedly also wore a tee-shirt, with the sleeves ripped off. No property linked to the robbery was apparently found in the Suburban.
In his certifications in support of his motion and claim of innocence, Julney stated that when he was arrested, he wore black jeans and a tank top, in contrast to the victims' claim their attackers wore blue jeans and tee-shirts. Julney also noted that no stolen property was found in the vehicle. He claimed he was on his way to a Walgreens drug store when he was arrested. He did not mention whether or not he had a passenger in the vehicle. Julney added that one of the victims, Susan Madison, stated she never saw him; no fingerprint evidence tied him to the robbery; and according to the police officer who testified at the Wade hearing, none of the victims identified Julney by name.
We continue to use the pseudonyms we adopted in Julney I, to protect the privacy of the victims.
However, Julney was positively identified in show-up identifications at the crime scene by Sharon Dimsdale and another adult victim, Madison. Dimsdale also identified Julney in a photo line-up. Madison claimed to know Julney as the boyfriend of a woman in the house at the time of the invasion. She suspected that the woman informed Julney that Dimsdale planned a vacation and had money in the house. Madison also alleged that the woman disconnected her phone when she first tried to call 9-1-1.
An eyewitness told police in a sworn interview that he saw the Suburban arrive near the victims' house, and saw what he believed were four or five African-American men exit the vehicle. About five minutes later, they returned. The witness said, "they looked like they were arguing . . . I heard one of the guys say we are not going to leave empty handed."
A vehicle report stated that the Suburban belonged to a Catherine Wallace, who identified herself as the mother of Porter's daughter. In a transcribed police interview in January 2009, Wallace stated that on the day of the home invasion, she saw "Sherry" — apparently a reference to Cheryl Milligan — along with Porter, Sowell, and Julney — whom she identified by his street name. All four were in Milligan's minivan. Wallace was sitting in her Chevrolet Suburban, while watching her children.
We use a pseudonym of this witness, to protect her privacy.
Wallace stated she overhead Julney suggest they participate in a robbery, stating that his girlfriend knew another woman who had a significant amount of money. She later let Porter use her car. Wallace stated that Porter called her after he was arrested to say that Julney had the keys to her Suburban. Wallace confirmed other details that linked Julney to the robbery.
II.
In Julney I, we remanded to the trial court for reconsideration of its decision to deny Julney's plea withdrawal motion. We held that the trial court did not adequately consider whether Julney asserted a "colorable claim of innocence" — the first of the four factors that a trial court must consider in deciding whether to grant a motion to withdraw a plea under State v. Slater, 198 N.J. 145, 150 (2009). Julney I, supra, slip op. at 18-22. We held on the record before us that we were "unable to dismiss out-of-hand" Julney's claim of innocence. Id. at 21.
We reviewed in detail the police testimony at the Wade hearing, and the official version of the offense in the pre-sentence report, and other record evidence before us, which indicated that Julney may have had a colorable claim of innocence. Id. at 20-22. We noted discrepancies between the Wade hearing testimony and the official version of the offense set forth in Julney's presentence report. Id. at 21-22. Contrary to the Wade testimony, and the discovery we have reviewed above, the official version stated that the female arrestee was driving the Chevrolet, with two other male passengers, Porter and Julney. Ibid. We also noted that Julney had consistently professed his innocence, in discussions with his attorney, and in his pre-sentence interview. Id. at 21. We noted that the record reflected that one defendant vigorously denied his guilt at the show-up, although that person was not identified. Ibid.
We also addressed the other Slater factors. With respect to factor two, "the nature and strength of defendant's reasons for withdrawal," Slater, supra, 198 N.J. at 157-58, the trial court had rejected Julney's claim that he was compelled to plea by his attorney's lack of diligence. We found sufficient, credible evidence for the court's finding. The trial judge heard the testimony of Julney and his former attorney, and credited the attorney's testimony that he reviewed discovery with Julney, conferred with him about the strengths and weaknesses of his case, and was pursuing motion practice prior to the plea. Julney I, supra, slip op. at 22.
We also suggested that the court reconsider whether to give more weight to factors three and four, Slater, supra, 198 N.J. at 150: "the existence of a plea bargain," and "whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Julney I, supra, slip op. at 23.
On remand, the court reviewed the various discovery materials provided by the State. Julney did not provide any additional evidentiary materials, nor did he supplement his certifications. The court determined that Julney's claim that he was not involved in the robbery and that he was simply on his way to Walgreens was "not much more than a conclusory statement that he did not commit the crime and that is not really supported by any of the discovery in the case." The court found that the other points raised by Julney were efforts to "punch holes in the State's theory of the case." In other words, Julney did not present exculpatory evidence, but instead noted the absence of inculpatory proofs — for example, the absence of fingerprint evidence, possession of stolen property, and a license plate number to support the vehicle stop. The court also gave little weight to Julney's claim that his attire when arrested differed significantly from what the victims described.
The court also held that Julney's plea was interlocking with those of co-defendants, meaning that the State's plea offer was contingent on all defendants pleading. Consequently, the State would suffer greater prejudice than if Julney's plea was independent of his co-defendants' pleas.
On appeal, Julney argues that the court misapplied the "colorable claim of innocence" factor, and effectively conducted a mini-trial, disapproved in Slater, supra, 198 N.J. at 159, by finding the State's proofs more persuasive than Julney's. He also argues that there was no persuasive proof of interlocking pleas, and Julney's withdrawal would not affect the cases of the other co-defendants. Lastly, he challenges his sentence as excessive.
III.
We may reverse a trial court's denial of a plea withdrawal motion "'only if there was an abuse of discretion which renders the lower court's decision clearly erroneous.'" State v. Lipa, 219 N.J. 323, 332 (2014) (quoting State v. Simon, 161 N.J. 416, 444 (1999)).
The Court has emphasized that in order to establish a colorable claim of innocence, a defendant need not persuade the motion court of his or her innocence. However, he or she needs to present more than a mere blanket, or bald assertion of innocence. He or she must point to specific, credible facts that support his or her claim, leaving for a jury the resolution of legitimate factual disputes. See Lipa, supra, 219 N.J. at 333-34; State v. Munroe, 210 N.J. 429, 442 (2012); Slater, supra, 198 N.J. at 158-59. A trial court is to consider and balance the "colorable claim of innocence" factor with the other three factors. "No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Slater, supra, 198 N.J. at 162.
Julney's blanket denial, and his assertion that he was on his way to the Walgreens, may be accurately characterized as bald assertions of innocence. Also, the court was justified, in light of the substantial evidence arrayed against Julney, to give little weight to Julney's claim that the State lacked certain additional forms of inculpatory evidence — such as fingerprint evidence, and the possession of stolen property.
Julney relies on our observations in Julney I that "the police witness's testimony in the Wade hearing lends plausibility to defendant's claim, and undermines the State's official version of the crime, set forth in the pre-sentence report." Julney I, supra, slip op. at 21. Simply put, the official version of the offense set forth in the pre-sentence report — specifically, that Julney, Porter, and Milligan, were all arrested together in the Chevrolet — is at odds with the discovery in the case now presented to us. Also, the Wade hearing testimony appears less significant as credible evidence of innocence, in light of the expanded record. The police witness at the Wade hearing was obviously uncertain about the circumstances of Julney's arrest. However, the witness was not directly involved in that arrest. He stated he was present at the arrest of a single male — apparently Sowell or Porter — and soon thereafter, the two individuals in the minivan.
By contrast, the arrest report in discovery indicates that Julney was not arrested alone. Julney, significantly, did not specifically claim he was alone when arrested, or dispute the report that he was arrested with Lanier, who was wearing a telltale torn tee-shirt described by the victims. Nor does he address Wallace's claim that he was driving her vehicle; she was connected to Porter, because she had his daughter; and Wallace overheard Julney suggest the robbery. The discovery also reflects that Julney was positively identified at the show-up, and at a subsequent photo array. Finally, the evidence tending to show that only one car was seen leaving the crime scene — which we considered significant in Julney I — appears less helpful to Julney's defense, in light of the police reports that Julney was arrested in the Suburban, the sort of vehicle observed leaving the crime scene.
We recognize that Julney did point to specific, credible facts supporting his claim of innocence, in particular, that his attire differed, albeit slightly, from the victims' description of their attackers. He also pointed to the absence of certain additional inculpatory evidence as we have noted. Arguably, the discrepancies in the reports, noted above, are also supportive. We thus may recognize that Julney's claim was "colorable," particularly in light of Julney's claims of innocence to his attorney before his plea, and to the probation officer preparing his pre-sentence report after his plea.
Nonetheless, Slater commands that a court balance each factor. Slater, supra, 198 N.J. at 162. That involves more than an arithmetic tally of the factors. It requires a weighing of the strength of each factor. For example, the Court in Lipa considered not only whether the defendant presented some evidence of innocence, but the strength of that evidence. See Lipa, supra, 219 N.J. at 335 ("Here, defendant's showing on the first factor is quite strong."). In contrast to Lipa, we conclude Julney's showing on the first factor is quite weak, in light of the discovery presented to the court.
We also find no basis to disturb the court's conclusion, on remand, that factors three and four tilt against granting Julney's motion. The court found, based on sufficient evidence, that Julney's plea was interlocking with the plea agreements of the other defendants. The State agreed to the plea terms with Julney's co-defendants with the understanding that Julney would plea as well. The co-defendants pleaded with the understanding that the others would as well.
Julney notes that the interdependence of the pleas is not set forth in the written plea agreements. However, Julney, Sowell, Porter and Lanier all apparently entered their guilty pleas at a joint hearing. All four appeared together, and the court advised them collectively of their rights. The court considered Sowell's plea first. After Sowell provided his allocution, the assistant prosecutor began questioning Sowell in an obvious attempt to secure incriminating evidence against the other defendants. An exchange followed that made it clear the pleas were interlocking:
We have a transcript of Sowell's February 18, 2009, plea hearing, at which Julney, Lanier, and Porter appeared.
[ASSISTANT PROSECUTOR:] Mr. Sowell, the other people that you entered that house with, their names are Barry Porter, correct?
[SOWELL] (indiscernible).
[ASSISTANT PROSECUTOR:] Well, I mean, they're either all pleading or they're not, but --
THE COURT: Well, let's -- all of these -- all of these pleas are conditioned on all four of these gentlemen pleading. So that if all four of these gentlemen don't plead, all the pleas are vacated and we're going to back to square one, correct?
[ATTORNEY FOR SOWELL]: That's understood.
[ASSISTANT PROSECUTOR]: That's fine.
THE COURT: Correct. So with that being understood, you don't have to ask him any questions about any of the other ones. All right?
[ASSISTANT PROSECUTOR]: Okay.
It is unclear from the record whether a failure of the "all or nothing condition" created rights in defendants, or the State, or both. Cf. State v. Conway, 416 N.J. Super. 406, 411-12 (App. Div. 2010) (discussing plea agreements involving co-defendants where defendants, but not the State, had the option to withdraw from their plea agreement if the others did not plea). The trial court stated that none of the defendants "have an interest in withdrawing their pleas." But, in our view, Julney's withdrawal would nonetheless create the risk of such requests.
Moreover, as the trial court noted, the State did not secure cooperation agreements from the co-defendants, in reliance on pleas from all of them. At the plea hearing, the State was deterred from questioning defendants about their co-defendants' participation. The State may consequently suffer prejudice if forced to go to trial against Julney. The trial court also noted the impact on the child victims if the case were tried.
In sum, Julney presented a relatively weak showing regarding factor one; the court previously held that Julney presented a weak showing regarding factor two; and factors three and four disfavored granting the motion. Thus, on balance, we discern no basis to disturb the court's denial of the motion, given our deferential standard of review.
IV.
Julney's remaining points on appeal lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We address them briefly.
Julney argues that his trial counsel was ineffective by failing to pursue his motion to suppress the fruits of the traffic stop of the vehicle in which he was arrested. The judge who heard the suppression motion was different from the judge who handled the Wade hearing, the subsequent pleas, and Julney's withdrawal motions. After the second judge entered the case, he attempted to ascertain what motions may have been left unresolved besides the Wade issue. Julney's attorney stated on the record that he believed the trial court's prior suppression hearing and decision resolved his client's suppression motion. On appeal, Julney argues his attorney's concession was erroneous, and his attorney was ineffective by failing to pursue the motion prior to his plea.
He also challenged the trial court's denial of the suppression motion as it pertained to the stop of the minivan, adopting the arguments presented by Sowell in his appeal. However, we rejected those arguments in Sowell.
We are unpersuaded. Assuming Julney's ineffective assistance claim was properly presented, Julney must establish both ineffective assistance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
According to the record on appeal, defendant did not file a petition for post-conviction relief, Rule 3:22-1. Rather, his claim of ineffective assistance was raised in Julney's brief to the trial court in connection with our remand. --------
We need not dwell on the claim of deficient performance, since Julney has provided no grounds to believe that the suppression motion would have been successful. When a defendant asserts his attorney was ineffective by failing to pursue a motion, he 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). Shortly after the robbery, Julney was spotted in a car that generally matched the description of the vehicle in which the robbers were said to have fled and in the same vicinity. That would appear to provide a reasonable, articulable basis for a stop. See State v. Stovall, 170 N.J. 346, 356 (2002). Moreover, Julney points to no evidence that was seized as a result of the stop, or the subsequent search pursuant to a search warrant, that he wishes to exclude.
We also find no merit in Julney's challenge to his sentence. He received concurrent terms of fourteen years — below the midpoint for his first-degree offenses. See N.J.S.A. 2C:43-6(a)(1). The terms were also concurrent to a separate sentence for a drug offense to which Julney had already pleaded guilty. We are satisfied that the court's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record; the judge correctly applied the sentencing guidelines; and the sentence was not manifestly excessive or unduly punitive so as to constitute a mistaken exercise of sentencing discretion. See State v. Cassady, 198 N.J. 165, 179-84 (2009); State v. Roth, 95 N.J. 334, 364-66 (1984).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION