STATE OF NEW JERSEY v. ABDUL WARD (14-08-0694 AND 15-08-0553, UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 4, 2022
• Docket: A-3078-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3078-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABDUL WARD, a/k/a JOHN COOK and ABDUL H. WARD,

Defendant-Appellant. __________________________

Submitted January 24, 2022 – Decided August 4, 2022

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 14-08-0694 and 15-08-0553.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

William A. Daniel, Union County Prosecutor, attorney for respondent (Albert Cernadas, Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Abdul Ward appeals from the denial of his petition for post-

conviction relief (PCR), contending 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.

Apparently disgruntled by the price he was charged for illegal drugs on

Berckman Street in Plainfield, defendant returned to the scene with a 9MM

semi-automatic handgun and fired eight times into a group of people milling

about in front of a convenience store. One of the bullets struck a thirty-four-

year-old man at work inside the store, killing him. He left a wife and an eight-

year-old son. Defendant fled in a car, leading police on a high-speed chase

which ended with several other people hurt, two seriously.

Indicted on charges of first-degree murder and weapons offenses — as

well as racketeering, conspiracy, distribution of CDS, aggravated assault,

eluding and several theft offenses — defendant entered a negotiated guilty plea

to aggravated manslaughter in exchange for the State's recommendation of a

twenty-eight-year prison term subject to the periods of parole ineligibility and

supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, and dismissal of the remaining charges. He reserved the right to argue for

A-3078-19 2 a lesser sentence. He resolved two other indictments by pleading guilty to

third-degree possession of CDS in exchange for a five-year-flat sentence to run

concurrent to that imposed on the aggravated manslaughter conviction.

At sentencing, the State urged the court to find aggravating factors three,

the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); five,

the substantial likelihood defendant is involved in organized criminal activity,

N.J.S.A. 2C:44-1(a)(5); six, the extent of the defendant's prior criminal record

and the seriousness of the offenses of which the defendant has been convicted ,

N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter defendant and others,

N.J.S.A. 2C:44-1(a)(9), and no mitigating factors. Defense counsel argued

against aggravating factor five but conceded there were facts in the record to

support the remaining aggravating factors the State urged. He argued certain

non-statutory mitigating factors, defendant's remorse and acceptance of

responsibility for the victim's death, should result in a twenty-seven-year

sentence, instead of the twenty-eight-year sentence negotiated.

Although rejecting application of aggravating factor five, the judge

found aggravating factors three, six and nine and no mitigating factors. The

judge concisely explained his reasoning, noting that although only "a young

man, in his early to mid-twenties," defendant had "already amassed a record

A-3078-19 3 that is shameful: He's got two prior indictables already with two parole

violations. He had two juvenile adjudications for delinquency with a violation

of probation, and four municipal convictions." Emphasizing defendant's "lack

of success in prior diversionary programs," the judge declared defendant "a

serial offender." The judge also noted defendant had "multiple prior

adjudications for drug related offenses" similar to the one on which he was

being sentenced, further speaking to the likelihood of re-offense.

As to aggravating factor nine, the judge found "the need for deterrence

couldn't be more clear," because "[n]othing has worked so far with regard to

[defendant], not [the] juvenile adjudications, not an opportunity to be on

probation as a juvenile, which he flouted, and not the [punishment for] drug

related offenses of lesser severity." The judge deemed "[t]his offense, this

depravity, and the recklessness, and the cavalierness of [defendant's] conduct

here . . . it's almost of biblical proportions, the antisocial aspects of

[defendant's] conduct cries out for deterrence."

Defendant appealed his sentence, which we reviewed on a sentencing

calendar, R. 2:9-11, and affirmed, only remanding to correct the judgment of

conviction to conform to the court's oral pronouncement of a twenty-seven-

and-a-half-year custodial term, not twenty-seven years as stated. See State v.

A-3078-19 4 Abril, 444 N.J. Super. 553, 564 (App. Div. 2016). The Supreme Court denied

defendant's petition for certification. State v. Ward, 236 N.J. 487 (2019).

Defendant thereafter filed a timely petition for PCR alleging his plea

counsel was ineffective for failing to argue against aggravating factors three,

six and nine, failing to argue in favor of mitigating factor twelve, N.J.S.A.

2C:44-1(b)(12) (willingness to cooperate with law enforcement), as well as the

non-statutory mitigating factor of defendant's youth, failing to address the

disparate sentence imposed on a co-defendant and failing to argue he should be

sentenced as if to a second-degree crime pursuant to N.J.S.A. 2C:44-1(f)(2),

and that his appellate counsel was also ineffective for not raising these same

points.

Judge Kirsch, who took defendant's plea and imposed sentence, rejected

those claims following oral argument in a comprehensive oral opinion,

concluding defendant had not established a prima facie case for relief. See

State v. Preciose, 129 N.J. 451, 462-64 (1992). Specifically, the judge found

there were "substantial and uncontestable grounds for aggravating factors

three, six, and nine," and noted another judge sentencing defendant over seven

years before on a third-degree drug conviction found the same aggravating

factors and no mitigating ones. The judge found defendant offered no

A-3078-19 5 assistance to law enforcement so as to qualify him for mitigating factor twelve,

and observed that by defendant's logic, "everybody who pleads guilty should

be entitled to mitigating factor twelve," which is obviously not the case.

The judge made clear defendant did not qualify for any non-statutory

mitigating factor, including youth, nor for sentencing as a second-degree

offender in light of his escalating, serial, antisocial acts, and that he would

have rejected both claims had plea counsel argued them. The judge also found

a disparity analysis was not necessary as defendant was the only one among

his co-defendants charged with murder or manslaughter, making clear why his

sentence was not comparable to theirs. Because none of those arguments

would have aided defendant in the trial court, the judge found appellate

counsel was not remiss for failing to argue them on appeal.

On this appeal, defendant reprises his arguments about the

ineffectiveness of plea and appellate counsel in the following two points:

POINT ONE

THE PCR COURT ERRED IN DENYING MR. WARD'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING AS TESTIMONY IS NEEDED FROM PRIOR COUNSEL TO EXPLAIN WHY HE FAILED TO RAISE MITIGATING FACTORS ON BEHALF OF HIS CLIENT AT SENTENCING, AND FAILED TO CHALLENGE AGGRAVATING FACTORS,

A-3078-19 6 WHICH, IF HE HAD, WOULD HAVE RESULTED IN A SENTENCE A DEGREE LOWER FOR FIRST- DEGREE AGGRAVATED MANSLAUGHTER.

POINT TWO

MR. WARD'S PETITION SHOULD BE REMANDED TO THE PCR COURT AS THE PCR COURT FAILED TO DISCUSS APPELLATE COUNSEL'S FAILURE TO RAISE VARIOUS SENTENCING ISSUES ON APPEAL. (Not raised below).

Our review of the record convinces us Judge Kirsch conscientiously

considered all of defendant's claims and appropriately denied him relief. We

agree defendant failed to demonstrate the performance of his plea counsel or

his appellate counsel was substandard or that, but for any of the alleged errors,

the result would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 694 (1984). Accordingly, we affirm, substantially for the reasons

expressed in Judge Kirsch's thorough and thoughtful opinion from the bench

on January 10, 2020.

Affirmed.

A-3078-19 7