Opinion
DOCKET NO. A-0187-10T3
02-29-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRIS NOBLES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Virginia Drick Messing, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, 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NOT FOR PUBLICATION WITHOUT THE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 Grall and Alvarez.
On appeal from Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 05-05-1096.
Joseph E. Krakora, Public Defender,
attorney for appellant (Virginia
Drick Messing, Designated Counsel,
on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent
(LeeAnn Cunningham, Special Deputy
Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Chris Nobles appeals from a denial of his petition for post-conviction relief. We affirm.
I
Defendant's convictions are based on his plea of guilty, which was entered pursuant to an agreement with the State resolving charges in two indictments. In the first indictment, the grand jurors charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1)-(2); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm with purpose to use it unlawfully, N.J.S.A. 2C:39-4a. In the second, he was charged with possessing a weapon although disqualified by prior conviction, N.J.S.A. 2C:39-7. The plea agreement called for the State to: dismiss the second indictment; amend the murder charge to aggravated manslaughter, N.J.S.A. 2C:11-4a(1); dismiss the count charging possession with unlawful purpose; and recommend a twelve-year term of imprisonment subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In conformity with that agreement, defendant was sentenced to a twelve-year term of imprisonment for aggravated manslaughter, subject to NERA, and a concurrent five-year term for unlawful possession of a weapon. Defendant's twelve-year sentence for aggravated manslaughter is below the midpoint in the range of ordinary terms for aggravated manslaughter. N.J.S.A. 2C:11-4c.
Defendant did not file a direct appeal, but he filed a timely petition for post-conviction relief. Judge Vena, who accepted defendant's guilty plea and imposed sentence, appointed counsel to represent defendant on the petition. The judge rejected defendant's request to vacate the plea because of "newly discovered evidence" and his request for relief based on his allegations of his prior attorney's deficient performance — specifically, failure to investigate the State's evidence and failure to adequately explain the consequences of the NERA parole.
A
During the colloquy that preceded defendant's testimony about the crimes at the plea proceeding, defendant testified that he had reviewed the questions on the plea agreement forms with his attorney, understood the questions and provided truthful answers. In court, he identified his initials and signatures on the various forms.
In addition to setting forth the duration of NERA parole ineligibility and of the NERA parole supervision term, the plea form explains the consequences of a violation of NERA parole as follows:
Do you understand that if you violate the conditions of your parole supervision that your parole may be revoked and you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed?Defendant marked "yes," indicating his understanding of that information, and he signed the form. During the plea hearing, the judge probed to ensure that defendant understood that paragraph. He advised defendant:
[P]ursuant to [NERA], you'll be required to . . . serve a period of parole supervision subsequent to your release of five years.Defendant confirmed that he understood this information.
And so . . . what that means in real terms is that even if you . . . got out at your earliest eligibility date of ten years and 73 [days], when you add that to the five years of parole supervision, you'd be serving, if you counted parole supervision as part of your sentence, you'd be serving more than the 12 years, of 10 years 73 days plus the five years. You understand that, right?
With equal clarity, the judge questioned defendant's understanding of the rights he was waiving by pleading guilty and his satisfaction with his lawyer's representation. The court accepted the guilty plea, and defendant did not move to withdraw it until he filed this petition for post-conviction relief.
B
At the time of his plea, defendant acknowledged that on September 12, 2004, he was in possession of an operable handgun at an intersection in East Orange near his home. He did not have a permit for that gun. Michael Lange, whom defendant knew, approached him, and they argued and fought. Defendant shot Lange multiple times. Although defendant said he intended to get Lange away from him, not to kill him, defendant acknowledged that he knew his firing of the gun would place Lange's life at risk and disregarded that risk when he fired.
According to defendant's pre-sentence report, two witnesses to the shooting who lived in the neighborhood and knew defendant by his nickname, "ReeUP," told the police he shot Lange. The pre-sentence report discloses that defendant gave his probation officer an account of the incident materially consistent with the one he had given at the time of his guilty plea.
C
Defendant requested relief from his plea on two grounds: he was not given adequate information about the significance of NERA parole; and "a newly discovered" witness his lawyer failed to identify and locate would cast doubt on the testimony of a witness who saw defendant on the night of the homicide. Defendant asserts that he told his attorney the eyewitnesses lied to the police about seeing him at the scene of the homicide, but his attorney did not believe him and did not investigate the matter.
Defendant supported his claim of newly discovered evidence with a certification from the brother of a witness who told the police he had seen defendant on the night of the homicide. The brother, Malik Blandford, stated that he and his sibling were together between Friday, September 10 and Sunday, September 12, 2004. Explaining that he himself did not see defendant at 1:00 a.m. on Saturday, September 11, Malik asserted that if his brother had seen defendant, then he would have seen him too.
With respect to the significance of NERA parole, defendant asserted that his attorney did not tell him he could serve a sentence longer than twelve years if he violated NERA parole.
D
Judge Vena denied the petition and filed a written opinion stating his findings and reasons on April 22, 2010. Ignoring Malik's evident confusion about the day of the week on which Lange was shot, Judge Vena viewed Malik's certification in the light most favorable to defendant. The judge assumed that Malik's certification established that his brother was one of the two eyewitnesses and that Malik and his brother were together at the time of the homicide. The judge concluded that the certification lacked sufficient evidential value to cast doubt on the validity of defendant's guilty plea or the competence of counsel's performance.
Judge Vena rejected defendant's objections grounded on his NERA sentence because they were contradicted by the record of the plea proceeding.
II
On appeal defendant raises three issues for our consideration:
I. IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.These arguments have insufficient merit to warrant more than brief comment. R. 2:11-3(e)(2).
II. THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
III. ALL POINTS RAISED BY DEFENDANT-APPELLANT IN ANY AND ALL PRIOR AND SUBSEQUENT SUBMISSIONS TO THE COURT ARE INCORPORATED BY REFERENCE INTO THIS BRIEF.
We first discuss defendant's claim based on his motion to vacate his plea based on newly discovered evidence, which is incorporated by reference in Point III. A ruling on an application to withdraw a guilty plea is reviewed for abuse of discretion. State v. Slater, 198 N.J. 145, 156 (2009). Because defendant first moved to vacate his plea after sentencing, the judge could vacate the plea only upon a showing of manifest injustice. Ibid. Contrary to defendant's claim, the record leaves no room for any doubt that he was advised of the consequences of this plea and entered his plea voluntarily and with an understanding of the consequences.
A request to withdraw a guilty plea requires the court to first consider whether the guilty plea was taken in compliance with Rule 3:9-2. Id. at 155. This plea clearly was.
In determining whether to vacate a plea that has been entered in accordance with Rule 3:9-2, the judge was required to consider: "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." Slater, supra, 198 N.J. at 150. The inquiry requires a balancing of those factors, none of which are determinative. Id. at 162.
Defendant's only colorable claim of innocence is his assertion that the eyewitnesses who identified him lied, and the only arguably valid reason he asserts for vacating his guilty plea is his recent discovery of Malik's willingness to challenge a witness who told the police he saw defendant that night. His colorable claim of innocence and his reason for withdrawal of his plea both depend on the probative value of Malik's certification. Newly discovered evidence is a valid reason entitling a defendant to withdraw a guilty plea only if the evidence permits a court to find that it would probably change the outcome of the case. See State v. Carter, 85 N.J. 300, 314 (1981) (stating the three essential characteristics of newly discovered evidence); State v. Dickerson, 268 N.J. Super. 33, 36 (App. Div. 1993) (applying those standards in addressing a request to withdraw a guilty plea).
Quite obviously, evidence that lacks any probative value does not meet the standard. Malik's certification is too vague to permit any favorable inference. With no detail describing where the brothers were or what they were doing at the time of this homicide, the assertion, that one brother claims to have seen defendant and one denies seeing him, leaves the reader to ponder the seemingly endless possible explanations. The inconsistency, in itself, does not tend to show that Malik's brother, more likely than not, gave the police false information.
Considering that defendant entered this guilty plea pursuant to an extremely favorable plea agreement and lacks a sound reason for seeking relief from its terms, he has not shown that it is manifestly unjust to allow his convictions to stand. Accordingly, we affirm the denial of his application to withdraw the plea based on the inadequacy of the information defendant was given about NERA and Malik's certification.
With respect to defendant's claim of ineffective assistance of counsel, we affirm substantially for the reasons stated by Judge Vena. Defendant was required to establish deficient performance and prejudice, Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Nunez-Valdez, 200 N.J. 129, 139 (2009); State v. Fritz, 105 N.J. 42, 58 (1987), and he did not make a prima facie showing of either. Accordingly, it was proper to deny relief without an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(a).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION