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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6470-06T46470-06T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. RASHIAR LEWIS, Defendant-Appellant. ____________________________

Submitted March 25, 2009 - Decided Before Judges Waugh and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Salem County, Accusation No. 07-03-0016-A. Troy A. Archie, attorney for appellant. John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Rashiar Lewis appeals from his guilty plea as an adult to aggravated manslaughter and his fourteen-year sentence with eighty-five percent to be served before eligibility for parole. We affirm.

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On the night of January 22, 2007, at the age of fifteen, defendant led two of his cousins, one of whom was also a juvenile, in a strong-arm robbery and aggravated assault in Penns Grove, New Jersey. Defendant suggested that the three rob a man they saw walking and carrying shopping bags. They stalked the man, waiting for him to reach a dark area of the street. Defendant approached from behind and punched the man in the head. The victim fell, striking his head on the pavement. The cousins then kicked the man as defendant took his wallet. The three ran away and split about $105 taken in the robbery. A week later, the victim died of head injuries. The police quickly developed leads and arrested the three teenagers within days of the crime. All three confessed. A juvenile delinquency complaint was filed against defendant on January 30, 2007, charging offenses that if committed by an adult would be conspiracy to commit robbery in violation of N.J.S.A. 2C:43-7.2, meaning that eighty-five percent of the term would be served before parole eligibility and each would serve five years of parole supervision after release from prison. The two juvenile defendants would have to consent to transfer of their cases to the Law Division. All three accepted the plea offers, entered guilty pleas, and were sentenced in accordance with their agreements. On this appeal, the record does not include a transcript of the juvenile waiver hearing in the Family Part. There is no dispute, however, that defendant appeared in juvenile court with assigned counsel on March 5, 2007, and agreed to transfer of his case to the Law Division, where he would be charged as an adult. On the same day, defendant appeared with counsel in the Law Division and entered a plea of guilty to aggravated manslaughter under the plea agreement. He alleges on this appeal that he received ineffective assistance of counsel because his attorney did not have an autopsy report at the time of the guilty plea and should not have advised him to accept the plea offer. Before the plea hearing, defense counsel discussed with defendant's grandmother, mother, and sister, all of whom were present in court, the plea offer and consequences of the guilty plea. He also reviewed with defendant all the questions and answers contained on the standard criminal plea form to ensure that defendant understood his rights and the consequences of his guilty plea. At the plea hearing, the judge carefully inquired of defense counsel, the defendant himself, and the defendant's grandmother as his legal guardian whether they understood the terms of the plea agreement and the defendant's rights. They all answered affirmatively. In response to questions from the judge and defense counsel, the grandmother and mother both said they had concluded that it was in defendant's best interest to accept the plea offer. The judge conducted a hearing fully in accordance with the requirements of Rule 3:9-2, determining that defendant understood the charges, the terms of the plea agreement, and the consequences of his guilty plea, that

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he was entering the guilty plea voluntarily and not as a result of any threats or of any promises or inducements not revealed on the record, and that there was a factual basis for the plea. Between the date of the guilty plea and the sentencing date, defendant discharged his assigned counsel and retained private representation. Shortly before the sentencing date, his new attorney moved to withdraw defendant's guilty plea. In support of the motion, defendant filed a certification alleging that assigned counsel had pressured defendant to waive juvenile proceedings and to plead guilty by threatening that he faced the death penalty if he did not accept the State's plea offer. Before ruling on the motion, the court took brief testimony from the defendant and assigned counsel. Defendant testified that his assigned counsel told him that he would get more time in prison if he did not accept the plea offer, but he did not accuse the attorney of threatening him with the death penalty. He testified that his grandmother and mother told him that he faced the death penalty. Assigned counsel then testified that he had talked to defendant and his family members "quite a bit" about the plea offer but that he had never discussed the death penalty with them. Defendant's new attorney did not call the grandmother to testify, although she was present in the courtroom. Defendant's mother was not present at that hearing. The judge denied defendant's motion to withdraw his guilty plea, finding that assigned counsel's advice about a potentially lengthier prison sentence had been appropriate. Defendant does not challenge the judge's ruling based on alleged prejudicial advice about the potential sentence that could be imposed if he went to trial. See State v. Slater, ___ N.J. ___, ___ (2009)(slip op. at 19-22) (standards applicable to motion to withdraw guilty plea before sentencing). Instead, defendant challenges his attorney's performance in recommending that he accept the plea offer without first receiving and examining an autopsy report. In his testimony, prior assigned counsel could not remember whether he had received the autopsy report by the time of the plea. The prosecutor represented that, at the time of the juvenile court proceedings, the State had orally informed defense counsel about the medical examiner's conclusion that the cause of death was blunt force injury to the head and the manner of death was homicide. Allegations of ineffective assistance of counsel are usually not ripe for review on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). In this case, the trial court took brief testimony and made a record of defendant's allegation that his assigned attorney had threatened that he was facing the death penalty. Neither defendant nor the assigned attorney supported that allegation in their testimony. Instead of pursuing that ground for vacating his guilty plea, defendant contends on appeal that his

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attorney should not have advised him to waive juvenile proceedings and to accept the plea offer without first obtaining the autopsy report. Accepting that argument as true, defendant still has not shown that he was denied his constitutional right to effective assistance by his assigned counsel. In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), the United States Supreme Court identified a two-part test for evaluating claims of ineffective assistance of counsel. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. To satisfy the second part of the Strickland test, "[t]he defendant must show that there is 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. A defendant who has pleaded guilty "must show that 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." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed.2d 203, 210 (1985). In State v. Fritz, 105 N.J. 42, 58 (1987), the Supreme Court of New Jersey adopted the Strickland standard for claims of ineffective assistance of counsel brought under Article I, paragraph 10 of the New Jersey Constitution. Here, assuming that assigned counsel acted prematurely in recommending that defendant accept the plea offer without first examining an autopsy report, defendant has not presented any evidence that the autopsy report contained information different from the oral representation of the prosecutor about the cause and manner of death. Defendant had confessed that he struck the victim, who then fell and hit his head on the pavement. To meet the second part of the Strickland test, defendant would have to show that the autopsy report provided a potential defense or some benefit to the defendant that was not raised or discussed with him before he pleaded guilty. Even if the autopsy report were to pinpoint the precise cause of death as injury resulting from the cousins' kicking the victim rather than defendant's initial blow, all three would be criminally responsible for the victim's death. New Jersey's Code of Criminal Justice provides that a person is guilty of an offense by his own conduct or the conduct of another who is his accomplice or with whom he is engaged in a conspiracy. N.J.S.A. 2C:2-6a, -6b. Defendant was confronted with strong evidence, including his own confession, of having planned and led a robbery that resulted in death of the victim. He faced the possibility of a sentence of up to life in prison on a charge
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of felony murder, N.J.S.A. 2C:43-7.2. Unless the autopsy report were to show that the victim died of a cause other than the assault committed by one or more of the three co-conspirators, defendant's potential defenses would not have been any different if the attorney had the autopsy report in hand at the time of the guilty plea. Defendant has not shown a reasonable probability that the autopsy report would have changed his mind about pleading guilty. See Hill v. Lockhart, supra, 474 U.S. at 58-59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Defendant also argues that his sentence is illegal under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005). In Blakely, the United States Supreme Court held that a sentence based on judicial fact-finding that exceeds the maximum sentence authorized by either a jury verdict or a defendant's admissions at a plea hearing violates the defendant's Sixth Amendment right to trial by jury. 542 U.S. at 303-05, 124 S. Ct. at 2537-38, 159 L. Ed. 2d at 413-15. In Natale, the Supreme Court of New Jersey adjusted this State's Code of Criminal Justice to avoid a constitutional infirmity in our sentencing statutes after Blakely. The Court held in Natale that presumptive terms under the criminal code would no longer apply. Henceforth, sentencing courts were to weigh aggravating and mitigating factors in accordance with N.J.S.A. 2C:44-1 and to determine an appropriate sentence within the entire range provided by statute for a particular crime, without reference to a statutory presumptive term. Natale, supra, 184 N.J. at 487-88. Contrary to defendant's argument, neither Blakely nor Natale held that a jury must decide whether to impose a term of parole ineligibility or that the sentencing judge is prohibited from evaluating aggravating or mitigating factors in accordance with the criminal code as revised. See State v. Abdullah, 184 N.J. 497, 515 (2005) (judicially imposed parole disqualifier does not violate defendant's Sixth Amendment right to trial by jury). Here, the statutory sentencing range for aggravated manslaughter was ten to thirty years. N.J.S.A. 2C:11-4c. The plea form that defendant reviewed and signed, however, noted the sentencing maximum as twenty years. That discrepancy has no effect on defendant's appeal because the plea agreement specified a sentence of fourteen years under the provisions of the No Early Release Act. In fact, defendant was sentenced in accordance with the recommendation of the plea agreement, and fourteen years is toward the lower end of the sentencing range for aggravated manslaughter. The sentencing court found aggravating factor number three applicable, that there was a risk that defendant would commit another offense, 95 N.J. 334, 363-64 (1984), and did not violate defendant's constitutional rights.

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Affirmed. (continued) (continued) 11 A-6470-06T4 April 14, 2009 0x01 graphic

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