DOCKET NO. A-1060-13T2
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-10-1601. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Shawn Cook appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.
Defendant was indicted on charges of conspiracy to commit murder, N.J.S.A. 2C:5-2a(1), 2C:11-3a(1) and 2C:11-3a(2); murder, N.J.S.A. 2C:11-3a(1) and 2C:11-3a(2); two counts of attempted murder, N.J.S.A. 2C:5-1a(3) and 2C:11-3a(1); four counts of aggravated assault, N.J.S.A. 2C:12-1b(1) and (2); two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; possession of a firearm without a permit, N.J.S.A. 2C:39-5b and 2C:58-4; unlawful possession of a weapon, N.J.S.A. 2C:39-5c(2); and retaliation against a witness, N.J.S.A. 2C:28-5b.
The charges stemmed from orders defendant received from his co-defendant Tarell Ambrose to kill two men, Adkins and Brown, the latter as retribution for acting as a witness against Ambrose in another matter. Acting on those orders, defendant fired a shotgun at Adkins and his brother, killing Adkins and severely injuring his brother. The following day, defendant used a .357 caliber handgun to shoot Brown several times with the intention of killing him. Brown survived and identified defendant as the shooter.
After his first trial ended in a mistrial, and his second was about to begin, defendant pleaded guilty pursuant to a negotiated agreement. In exchange for dismissal of ten charges of the indictment and a recommended thirty-year term of imprisonment subject to the periods of parole ineligibility and supervision mandated by the No Early Release Act (NERA), defendant pleaded guilty to a charge amended from murder to first-degree aggravated manslaughter, second-degree aggravated manslaughter and first-degree attempted murder. The judge sentenced him in accordance with the plea agreement to a thirty-year NERA term. Defendant appealed his sentence, which we reviewed on a sentencing calendar, R. 2:9-11, and affirmed. The Supreme Court denied certification, State v. Cook, 210 N.J. 217 (2012).
Defendant thereafter filed a timely petition for PCR, alleging he received ineffective assistance of counsel in connection with his plea and sentence. Specifically, defendant claimed that his counsel pressured him into accepting the plea deal, failed to timely communicate with him and misinformed him of the plea offer and the material consequences of the plea, was not prepared for trial, and failed to bring the case to trial as defendant requested.
After hearing argument by assigned counsel, Judge Terrence Cook issued a written opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). The judge began his analysis stating "it is worth noting defendant killed one person, severely injured another, and attempted to kill a third." In light of the fact that defendant faced life in prison if convicted of murder and the other twelve charges of the indictment, which included two counts of attempted murder and conspiracy to commit murder, and that his counsel secured him a thirty-year term of imprisonment of which defendant "need only serve twenty-five years until parole ineligibility," the judge found "[t]hese results provide strong inference that counsel was more than an effective advocate on defendant's behalf."
The judge found defendant "misapprehends the role of counsel" in complaining that counsel "strongly encouraged" him to plead guilty rather than proceeding to a second trial. "In a context such as this it was precisely counsel's duty to strongly encourage defendant to proceed with the best available option." He rejected defendant's argument that he preferred to re-try the case as nothing more than a bald assertion not raised at his plea hearing and found defendant's contention that his counsel was not prepared for trial as "clearly belied by the record." The judge noted counsel had already tried the case once and had written to defendant about witness developments and trial strategy in anticipation of the second trial. The judge found "[s]uch correspondence unambiguously demonstrates counsel's active preparation for retrial, in direct contradiction to what defendant now asserts."
Finally, Judge Cook rejected defendant's argument that counsel failed to timely notice him of the State's offer of a more favorable plea deal than the one defendant ultimately accepted. Reviewing the record, the judge found no proof that the State had ever offered less than the thirty-year term defendant accepted. The judge found that counsel could not have been ineffective for either misunderstanding or failing to convey an offer never extended by the State, nor was defendant prejudiced by not being informed of a non-existent better offer. Because defendant's "bare bones assertions" failed to establish a prima facie case of ineffective assistance, the judge denied him an evidentiary hearing.
On appeal, defendant presents the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Cook's thorough and thoughtful June 28, 2013 written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION