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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5528-06T45528-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROICEE THOMAS,
Defendant-Appellant.
Submitted January 12, 2009 - Decided
Before Judges R. B. Coleman and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County,
Indictment No. 98-08-842.
Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj,
Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (William P.
Fisher, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Roicee Thomas appeals from a final order denying his petition for post-conviction relief (PCR)
entered on November 2, 2006, in the Superior Court, Law Division. Having carefully reviewed defendant's
arguments in light of the attendant facts and applicable law, we affirm the order denying his petition.
The relevant procedural history leading to this appeal can be briefly summarized. On August 28, 1998, a
Mercer County grand jury returned Indictment No. 98-08-842 charging defendant in twenty counts with crimes
relating to armed robberies that occurred on two separate dates. Counts one through five of the indictment related
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to a May 23, 1998, armed robbery at the Speedi Mart located at 1097 Parkway Avenue in Ewing Township, and
counts six through twenty related to a May 25, 1998, armed robbery at the Deli Mart located at 206 Sanhican Drive
in Trenton. On October 23, 2001, defendant entered a plea of guilty to two counts: count one, first-degree robbery,
N.J.S.A. 2C:15-1, and count six, first-degree armed robbery, N.J.S.A. 2C:43-7.2. At the plea hearing, defendant
acknowledged his understanding of the terms of the agreement as follows:
Q. Now, the plea arrangements in this case contemplate that you would receive a 20
year sentence with the No Early Release Act or the 85 percent law applicable on each of
the counts of the indictment that you had pleaded guilty to. And those sentences
would run concurrently with one another so that you would face a maximum total of 20
years with 85 percent or 17 years without parole. Do you understand that?
A. Yes.
Q. And you understand that upon release, the law requires that you serve five years on
parole upon your release. You understand that?
A. Yes.
Q. You also understand that the State is reserving the right to apply to the Court for a
sentence less than the agreed upon sentence in these plea arrangements under the
following circumstances: You have agreed to testify or to fully and truthfully cooperate
with the State in the investigation and prosecution of pending homicide cases which
are under present investigation by the State of New Jersey, the Mercer County
Prosecutor's Office, is that correct?
A. Yes.
Q. And part of that cooperation would mean -- would entail your testimony at those
cases -- in those cases should they go to trial. Do you understand that?
A. Yes.
Q. And upon the completion of said prosecutions, the State shall evaluate and assess
your level and extent of cooperation and make such recommendations to [the judge] . .
. as the State deems just under the circumstances as to a modification, if, at all, of any
sentence you receive. Do you understand that?
A. Yes.
Q. And there are no specific promises of lenience made until such time as the
investigations have been completed and the State has made that assessment. Do you
understand that?
A. Yes.
The sentencing hearing did not take place until July 12, 2002. On that date, after an initial disagreement as to
whether a lesser sentence was warranted even though defendant had not been called upon to testify against
others, the State recommended two concurrent seventeen-year terms with an eighty-five percent parole
disqualifier instead of the twenty-year terms set forth in the plea forms. This three-year modification of the terms
anticipated by the plea agreement, recommended by the State after consultation and negotiation with defendant's
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attorney, was accepted by the court. Defendant took the position the sentence should have been fifteen years or
even lower.
Defendant appealed his sentence in April 2003, and the matter was considered, pursuant to Rule 2:9-11, on the
Excessive Sentence Oral Argument (ESOA) calendar on October 9, 2003. The panel determined that the sentence
was not manifestly excessive or unduly punitive and it affirmed the sentence imposed. Subsequently, defendant
filed a petition for PCR on the ground of ineffective assistance of trial and appellate counsel. That petition was heard
on October 23, 2006, and it was denied in its entirety on that same date. On appeal from the denial of his PCR
motion, defendant contends the trial court erred in denying the petition or, alternatively, in denying counsel's
request for an evidentiary hearing. Defendant raises the following arguments:
A. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT AT
SENTENCING AS REFLECTED BY HIS VERBAL ASSAULT AGAINST HIM AS WELL AS BY HIS
FAILURE TO PRESENT ANY LEGAL ARGUMENT WHATSOEVER REGARDING THE
APPLICABLE AGGRAVATING AND MITIGATING FACTORS.
1. TRIAL COUNSEL'S CONDUCT TOWARD THE DEFENDANT AT SENTENCING REFLECTED
A DESTRUCTION OF THE ATTORNEY-CLIENT RELATIONSHIP TO THE DETRIMENT OF THE
DEFENDANT.
2. TRIAL COUNSEL FAILED TO EVEN REMOTELY ATTEMPT TO DEMONSTRATE THE
APPLICABILITY OF NUMEROUS MITIGATING FACTORS ON HIS CLIENT'S BEHALF
EMBODIED IN 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). First, defendant must
show "that counsel's performance was deficient" and second, "that the deficient
performance prejudiced the defense." Id. at 687. The latter meaning that counsel's
errors were so egregious "'as to deprive the defendant of a fair trial, a trial whose result
is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
Judicial review of counsel's performance is highly deferential, and must "'avoid viewing the performance
under the "'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466
U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered
adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."
Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. An attorney's "failure to raise unsuccessful
legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990);
Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra,
105 N.J. at 60-61. That standard does not require "the best of attorneys," rather, 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.'" State v. Davis, 116 N.J. 341, 351 (1989) (quoting Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at
2067, 80 L. Ed. 2d at 696-97).
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Our analysis first examines defendant's asserted belief that he should have been sentenced more leniently as
a result of his cooperation with the State in the prosecution of others. Defendant's plea agreement was explained in
detail on the record at his plea hearing. Included in the explanation were the limited terms on which defendant
would be allowed to withdraw his guilty plea and the acknowledgement that "there are no specific promises of
lenience [sic] made until such time as the investigations have been completed and the State has made that
assessment." Defendant expressly acknowledged his understanding that the term of incarceration, to which the
parties had agreed, was a total of twenty years, with the State reserving the right to recommend leniency in
exchange for defendant's testimony in other criminal cases. Ultimately, defendant's assistance in other prosecutions
was not of great value and he was not required to testify. Nevertheless, in consideration of defendant's effort and
cooperation, the State recommended a three-year reduction in the proposed twenty-year sentences. The colloquy
at the sentencing hearing reveals that reduction was brought about, in part, as a result of defense counsel's
persistence in the pre-hearing discussions.
At sentencing, defendant asserted that both his counsel and head of the Public Defender's office had misinformed
him that his sentence would be less than seventeen-years and that he could withdraw his guilty plea and proceed
to trial if he did not like the State's recommendation. While a defendant, misinformed about a material element of a
plea negotiation, may be permitted to withdraw the plea, State v. Nichols, 71 N.J. 358, 361 (1976); State v. Brown,
71 N.J. 578, 580-82 (1976), here defendant's assertions are contradicted by the recorded exchanges at the plea
hearing. At that time, defendant agreed that no promises had been made to get him to plea guilty "apart from
those promises that [counsel] just outlined rather extensively on the record."
Additionally, defendant contends that his trial attorney's denial of the alleged misrepresentation during
sentencing demonstrated a breakdown in the adversary process which thereby prejudiced the outcome of
defendant's sentence. More particularly, defense counsel represented to the court that he did not, nor did the head
of the Public Defender's office, promise defendant anything concerning sentencing outside of what was in the
record. In doing so, counsel indiscreetly protested by saying:
And since this is a direct frontal assault on my integrity and the probity of the head of
the office of the Public Defender in Mercer County, I can state that what -- what Mr.
Thomas is saying is an untruth. It's otherwise known as a lie. And, because he was never
told that by me or [my colleague] and I so represent to the court.
In essence, defense counsel was merely informing the judge that his client was falsely accusing him of something he
did not do. The State also stated for the record, it had not made any such representations to defendant.
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A criminal defense attorney may freely defend communications he did or did not have with his client regarding all
trial decisions where defendant seeks to overturn his conviction on the grounds of ineffective assistance of counsel,
"fraud or other improper or unprofessional conduct." State v. Humphreys, 89 N.J. Super. 322, 325 (App. Div. 1965);
accord State v. Bey, 161 N.J. 233, 296 (1999). Effective representation does not require an attorney to allow his
clients to compromise his professional reputation. Furthermore, 116 N.J. 580, 608 (1989). "Indeed, no evidence of
mental disease or by way of explanation of defendant's conduct is relevant (or even admissible) unless it bears on
whether he had the requisite mental state . . .                                                                             ." State v. Watson, 261 N.J. Super. 169, 178-79 (App. Div. 1992). Here,
none of the expert reports raised any doubt as to defendant's ability to contemplate that his conduct of armed
robbery would cause or threaten serious harm. Failing to raise these mitigating factors did not prejudice defendant
in any way, and was within defense counsel's discretion as to reasonable defense strategy.
Defendant also alleges, and we agree, that the trial judge should not have relied on the aggravating factor
embodied in 129 N.J. 451, 461 (1992); R. 3:22-2. It is not enough for the petitioner "to allege simply that an injustice
has transpired." State v. Mitchell, 126 N.J. 565, 579 (1992). The petitioner must be prepared to establish, by a
preponderance of the credible evidence, that he is entitled to the requested relief. Ibid. The petitioner must allege
and articulate specific facts which, if believed, would give the court an adequate basis upon which to rest its
decision. Id. at 579. It is clear from the record created at the plea hearing and the sentencing hearing that, other
than his own assertions, there is nothing and no one to support defendant's claim that he was promised a more
lenient sentence.
Thus, an evidentiary hearing for a PCR petition was not required. The trial court has discretion to conduct such a
hearing if the defendant has established a prima facie case of ineffective assistance of counsel. Precoise, supra, 129
N.J. at 462, but in order to warrant an evidentiary hearing, defendant was also required to demonstrate a reasonable
likelihood of success on the merits. State v. Marshall, 148 N.J. 89, 157 (1992), certif. denied, 522 U.S. 850, 118 S. Ct.
140, 139 L. Ed. 2d 88 (1997). It has been said that "[i]f the court perceives that holding an evidentiary hearing will
not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's
allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing
need not be granted." Marshall, supra, 148 N.J. at 158 (internal citations omitted).
Defendant has failed to show a reasonable likelihood of success on the merits. Based on our careful review of the
record, the PCR court properly denied his request for an evidentiary hearing.
Affirmed.
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(continued)
(continued)
15
A-5528-06T4
March 30, 2009
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