State of New Jersey v. Donald B. Lindsey

• Court: New Jersey Superior Court Appellate Division
• Decided: February 29, 2024
• Docket: A-2124-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2124-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD B. LINDSEY,

Defendant-Appellant. ___________________________

Submitted January 24, 2024 – Decided February 29, 2024

Before Judges Currier and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-09-2451.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief).

Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Kevin Jay Hein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM This matter returns to us after remand. Defendant Donald B. Lindsey

appeals from the October 13, 2021 Law Division order denying his petition for

post-conviction relief (PCR) following an evidentiary hearing. Because the PCR

judge's decision is supported by sufficient credible evidence in the record, we

affirm.

The salient facts were previously recounted in our decisions on

defendant's direct appeal, State v. Lindsey, No. A-6303-11 (App. Div. Aug. 20,

2015), certif. denied, 223 N.J. 558 (2015) (Lindsey I), and defendant's first PCR

appeal, State v. Lindsey, No. A-0531-18 (App. Div. Jan. 6, 2020) (Lindsey II).

We briefly set forth the facts material to our determination after an evidentiary

hearing was held by the PCR court on remand to decide defendant's sole

remaining claim of ineffective assistance of counsel as to defendant's rejection

of a plea offer.

On August 4, 2008, defendant and co-defendant, Martin D. Pierce,

exchanged gunfire, resulting in the death of a four-year-old bystander, B.T.1

Under indictment No. 10-09-2451, defendant was charged with first-degree

1 We use initials in accordance with prior proceedings in this matter and to respect the identity of the child victim.

A-2124-21 2 murder, N.J.S.A. 2C:11-3(a)(1) and -3(a)(2); first-degree attempted murder,

N.J.S.A. 2C:5-1; and multiple weapons charges.

Defendant and Pierce were tried jointly before a jury in February and

March 2012. The jury found defendant guilty of the attempted murder of Pierce

and acquitted defendant of the first-degree murder of B.T., but found him guilty

of the lesser included offense of manslaughter "committed in the heat of passion

resulting from a reasonable provocation" pursuant to N.J.S.A. 2C:11-4(b)(2),

and the weapons charges. The court subsequently sentenced defendant to an

aggregate thirty-three-year term of incarceration.

Defendant appealed and on August 20, 2015, we issued Lindsey I, a

consolidated opinion addressing the appeals filed by both defendant and Pierce.

We remanded to the trial court for a statement of reasons as to the court's

decision to impose a consecutive sentence for defendants' respective weapons

convictions.

On February 23, 2016, defendant filed a pro se PCR petition, which the

court dismissed without prejudice on February 17, 2017 due to the pending

direct appeal. On remand, the trial court resentenced defendant on May 5, 2017

to an aggregate twenty-eight-year term of imprisonment, however, the

A-2124-21 3 sentencing order was amended on May 8, 2017 to reflect defendant's time-served

credits.

On June 16, 2017, defendant requested that the court reinstate his PCR

petition, after which he filed an amended petition, certification and briefs. The

PCR court held a non-evidentiary hearing on August 17, 2018 and denied

defendant's petition in an August 21, 2018 order.

Defendant appealed, asserting that he received ineffective assistance of

counsel both before and during trial. Our January 6, 2020 Lindsey II decision

affirmed the PCR court's rejection of all defendant's arguments, save for one.

Id. at 3. We noted that the "exact terms and circumstances" of any plea

agreement that defendant was offered were "uncertain." Id. at 10 n.1. We

remanded the matter "for an evidentiary hearing limited solely to the

circumstances pertaining to [the State's] plea offer and defendant's decision to

reject that offer upon the advice of counsel." Id. at 3. Specifically, we instructed

the PCR court to consider four matters on remand:

(1) the precise terms of the plea offer, (2) the circumstances in which it was tendered, (3) when exactly the State first made the plea offer contingent on Pierce pleading guilty, and (4) when in relation to the imposition of such a precondition did defense counsel give the advice now claimed to constitute ineffective assistance of counsel.

A-2124-21 4 [Id. at 17-18.]

We further instructed that "in the event the PCR court on remand decides

to grant defendant's petition, the appropriate relief would not be to order a new

trial but rather to reoffer the plea agreement." Id. at 23 n.3.

On June 12, 2020, PCR counsel filed a supplemental brief on defendant's

behalf. On October 13, 2021, the PCR court held an evidentiary hearing at

which the defense called two witnesses, defendant and Marcia Soast, defendant's

trial counsel. The State called one witness, the State's prosecutor, Peter

Crawford. Three exhibits were moved into evidence: 1) a plea form from the

State dated August 10, 2009, offering defendant a thirty-year term of

incarceration with no parole eligibility in addition to various monetary penalties,

conditioned on truthfully testifying at trial against Pierce (S-1); 2) a case

scheduling order (S-2); and 3) a pretrial memorandum dated May 27, 2011 (S-

3).

At the outset of the evidentiary hearing, the PCR court ruled that, other

than the issues on remand, the application was time-barred under Rule 3:22-4.

The PCR court did not find that any of the exceptions to the temporal limitations

on a subsequent PCR petition applied because all of the additional grounds

asserted could have been raised in a prior proceeding, there was no fundamental

A-2124-21 5 injustice, and the denial of the relief would not be contrary to a new rule or

constitutional authority. Thus, the PCR court narrowed the hearing to the issues

we directed the trial court to address on remand.

The PCR court noted this court had an incomplete record when

considering defendant's prior PCR appeal. Specifically, the record lacked

evidence that the State had also offered defendant a plea for a twenty-five-year

term of incarceration that reduced the first-degree murder charge to one of

aggravated manslaughter pursuant to N.J.S.A. 2C:11-4(c). The PCR court

considered the recording of a May 27, 2011 pretrial hearing, which confirmed

the State offered a pretrial plea agreement with a recommended twenty-five-year

term of incarceration.

The PCR court found Soast's testimony to be clear, concise, unequivocal

and credible. Soast testified that the initial plea offer was for thirty years of

incarceration, contingent on defendant's truthful testimony against Pierce but

prior to trial the State changed the offer to twenty-five years. Soast reviewed

the pretrial memorandum to refresh her memory and testified that the State

offered defendant a proposed plea of guilty to aggravated manslaughter with a

recommended twenty-five years of incarceration and eighty-five percent parole

ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

A-2124-21 6 Soast stated that the proposed plea offer in the pretrial memorandum did not

require defendant to testify against Pierce.

Soast testified that she met with defendant numerous times to discuss the

case and the plea offers. She thought twenty-five years was an offer he should

seriously consider because this was a complicated case with strong proofs tying

defendant to the murder of a child through forensic evidence of the bullet as well

as witness testimony. Although defendant was asserting self-defense, which

Soast concluded was plausible, there was an issue about defendant's possession

of a weapon during the incident and a prior weapons offense. In addition to the

murder charges, defendant was facing various weapons charges with exposure

to potential significant jail time.

Soast testified that defendant was not initially inclined to accept the plea

offer. But, as the trial date came closer, defendant became increasingly

interested in accepting the offer. However, at that point the State had added the

contingency that Pierce also plead guilty. Ultimately, since Pierce would not

agree to a plea offer, the case proceeded to trial.

The PCR court found defendant's testimony at the evidentiary hearing was

less credible than Soast's since he did not give any detailed testimony and some

of his responses were confusing. Defendant asserted at the hearing that the

A-2124-21 7 initial plea offer was for twenty-five years to aggravated manslaughter and

included a condition that he testify against Pierce. Defendant stated he wanted

to plead guilty but "didn't want to testify" and was, therefore, unable to accept

the plea offer. Defendant also testified to meeting with his trial counsel "many"

times to discuss the merits of the case. He understood that success at trial on

his assertion of self-defense would be "hard to get."

On cross-examination, defendant asserted he testified truthfully at trial

that it was Pierce's bullet that struck the victim. Defendant also testified that, if

he had taken the plea agreement for aggravated manslaughter, he would have

"admitted that it was [his] bullet that struck the victim." Defendant

acknowledged his trial testimony would not have been truthful if he had already

pled guilty to the factual predicate for aggravated manslaughter.

The PCR court found Crawford's testimony to be "absolutely credible"

since he testified clearly, without hesitancy, and unequivocally with direct eye

contact. Crawford also testified that the original thirty-year plea offer was

reduced to twenty-five years prior to trial with eighty-five percent NERA parole

ineligibility for first-degree aggravated manslaughter. Crawford further

testified that the only condition to defendant's offer "was the truthful[,] factual

[testimony] regarding co-defendant, and [that defendant] agree to testify

A-2124-21 8 truthfully at trial." Crawford said that it was "never [his] offer that [the] plea

was actually contingent upon . . . Pierce pleading guilty." Additionally,

Crawford testified that defendant was only "willing to plead guilty under his

own terms, and that he didn't want to under the State's terms, which was namely

give a truthful[,] factual [testimony] regarding the co-defendant."

Crawford explained that when Soast said during sentencing that defendant

would have pled guilty if there had not been the contingency that Pierce also

plead guilty, he did not correct her because the focus of the court at that time

was on sentencing and "not to go over the terms of the plea agreement again."

Further, Crawford testified that the State would "never have gone lower than"

the twenty-five-year offer "because of the serious nature of the case." Crawford

also clarified that under any plea agreement, defendant would have been

required to testify truthfully during plea allocution, at his sentencing hearing

and at Pierce's trial.

Crawford proffered that some of the pretrial documentation was missing

the requirement that defendant testify truthfully in order to accept the plea offer

because of an "oversight." However, he said the State "would never drop that

condition" and although it was "left . . . off the form," it was not "left . . . off the

offer." Crawford testified that this oversight would not have caused confusion

A-2124-21 9 for defendant because "frankly this case [dragged] on for three or four years in

the pretrial process" and the State "had plenty of discussions" with defendant

through his trial counsel "about what he needed to do or not do." Crawford said

defendant could have accepted the offer up until the start of trial, regardless of

whether Pierce also pled guilty.

At the conclusion of the hearing, the PCR court orally denied defendant's

petition. The PCR court discussed each of the four issues directed be addressed

on remand, finding the testimony at the evidentiary hearing detailed "the precise

terms of the plea offer," "the circumstances under which [the offers] were

tendered," and that defendant could have "accepted that plea offer regardless of

what the co-defendant . . . was going to do . . . with respect to the charges against

him." The PCR court also determined that defendant's trial counsel discussed

with him the strengths of his case and his potential sentence exposure.

The PCR court found precise terms of the plea offer were established by

the testimony of Soast and Crawford, as well as through S-1 and S-3. The PCR

court concluded the State never attached a contingency that Pierce plead guilty

to any plea offer. The PCR court found the initial plea offer on August 10, 2009,

set forth in S-1, was thirty-years imprisonment subject to NERA with eighty-

five percent parole ineligibility with the requirement that truthful testimony be

A-2124-21 10 provided at trial on the charges against Pierce, and waiver of any appeal. The

pretrial memorandum, S-3, along with Crawford's credible testimony,

memorialized the plea offer of twenty-five-years imprisonment on the same

terms with the offer remaining open for acceptance until trial.

The PCR court found defendant's testimony that his first awareness of the

plea offer was by way of the pretrial memorandum was factually inaccurate

based upon S-1, dated August 10, 2009, which set forth an initial plea offer of

thirty-years imprisonment subject to NERA with an agreement to testify

truthfully at trial and a waiver of the right to appeal. Although the conditions

set forth in S-1 did not appear in the pretrial memorandum (S-3), the court found

Crawford's unequivocal and adamant testimony as to the conditions of the

twenty-five-year plea offer to be credible in that there was never a condition that

Pierce also plead guilty.

The PCR court found that there was no ineffective assistance of counsel

on either prong of the Strickland2 test. Further, the PCR court found that

"[t]here's no prejudice to the defendant. There was nothing to be prejudiced.

He made a conscious decision, for whatever reason . . . to [reject] the State's

2 Strickland v. Washington, 466 U.S. 668 (1984). A-2124-21 11 plea offer" and that defendant "wasn't going to testify against the co-defendant

in this matter."

On October 13, 2021, the PCR court memorialized its decision denying

defendant's PCR petition in a written order. The order specifies that all non-

remanded claims were time barred pursuant to Rule 3:22-4 and exceeded the

scope of the limited proceeding.

This appeal follows. Defendant raises the following contentions on

appeal:

POINT ONE

[DEFENDANT] IS ENTITLED TO RELIEF ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ADVISE HIM ADEQUATELY ABOUT THE STATE'S PLEA OFFER.

POINT TWO

[DEFENDANT]'S CLAIM THAT COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO FILE A MOTION FOR IMPROPER JOINDER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW.

PCR is New Jersey's response to the federal writ of habeas corpus. State

v. Preciose, 129 N.J. 451, 459 (1992). To succeed in obtaining PCR, a defendant

must "'establish, by a preponderance of the credible evidence, that he [or she] is

A-2124-21 12 entitled to the requested relief.'" State v. Mitchell, 126 N.J. 565, 579 (1992)

(quoting State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990)).

Determining whether counsel's performance was ineffective for purposes

of the Sixth Amendment to the United States Constitution requires analysis

under the standards formulated in Strickland, 466 U.S. at 687-88, and adopted

by the Court in State v. Fritz, 105 N.J. 42, 58 (1987). To prevail on a claim of

ineffective assistance of counsel, defendant must meet the two-prong test of

establishing that: (l) counsel's performance was deficient and counsel made

errors that were so egregious that counsel was not functioning effectively as

guaranteed by the Sixth Amendment, Strickland, 466 U.S. at 687; and (2) the

defect in performance prejudiced defendant's right to a fair trial such that there

exists a "reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694.

Our "review is necessarily deferential to a PCR court's factual findings

based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540

(2013). However, a PCR court's interpretation of the law is reviewed de novo.

Id. at 540-41.

"'Ineffective-assistance-of-counsel claims are particularly suited for post-

conviction review because they often cannot reasonably be raised in a prior

A-2124-21 13 proceeding.'" State v. Hess, 207 N.J. 123, 145 (2011) (quoting Preciose, 129

N.J. at 460). As set forth in Lafler v. Cooper, 566 U.S. 156, 164 (2012), to

establish prejudice when a defendant has rejected a plea offer on the basis of

deficient advice, the defendant must show that but for the ineffective advice,

there is a reasonable probability "that the defendant would have accepted the

plea and the prosecution would not have withdrawn it," "the court would have

accepted its terms," and "the conviction or sentence, or both," under the plea

"would have been less severe" than the judgment and imposed sentence. To

establish a prima facie case of ineffective assistance of counsel, a defendant

must present legally competent evidence rather than "bald assertions." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant has not met

that standard.

We turn first to defendant's argument that his trial counsel rendered

ineffective assistance by failing to advise him adequately about the State's plea

offer. This allegation is entirely unsubstantiated by the record. Providing the

deference due to the PCR court's findings of fact, the record establishes that

Soast met with defendant many times and reviewed with him all aspects of the

case, the likelihood of success at trial, the sentencing exposure, and all iterations

of the plea agreements proffered by the State. Soast testified that she advised

A-2124-21 14 defendant that he had a "complicated" case and never discouraged him from

accepting the plea agreement. The PCR court found Soast's testimony credible,

in fact "much more credible than the defendant in this matter."

We see no wisdom in disturbing the PCR court's factual findings. See

State v. Gideon, 244 N.J. 538, 551 (2021). Based on our thorough review of the

record before the trial court and prevailing law, defendant has failed to establish

counsel's performance was deficient sufficient to meet the first prong of the

Strickland standard. 466 U.S. at 687.

Even if defendant had shown his trial counsel's performance was deficient,

defendant has also failed to establish the second prong of Strickland which

requires that defendant show he was prejudiced. Ibid. At the evidentiary

hearing before the PCR court, defendant posited that he truthfully testified that

it was a bullet from Pierce's gun that hit and ultimately killed B.T. In order for

defendant to have accepted a plea offer, he would have had to accept the State's

requirement that he testify truthfully at allocution and during Pierce's trial.

Pleading guilty to aggravated manslaughter would necessarily require defendant

to testify that it was a bullet from his own gun that killed B.T. As defendant

continues to maintain it was not his bullet, he cannot claim he was prejudiced

by not accepting an agreement that would require untruthful testimony.

A-2124-21 15 [O]ur court rules and case law do not permit either the taking of a plea, or the sanctioning of one, that is based on a known lie. Because a trial court cannot give its seal of approval to, or become complicit in, a defendant's plan to commit perjury at a plea hearing, a PCR court, engaging in a hindsight review, cannot hold that a plea would have been acceptable had a defendant lied under oath.

[State v. Taccetta, 200 N.J. 183, 186 (2009).]

As defendant's first argument fails under both prongs of Strickland, we

now turn to defendant's second contention that his trial counsel rendered

ineffective assistance for failing to file a motion for improper joinder. The PCR

court rejected this argument as improper since it was not raised to the trial court

or on direct appeal. "A petitioner is generally barred from presenting a claim

on PCR that could have been raised at trial or on direct appeal, R[ule] 3:22-4(a),

or that has been previously litigated, R[ule] 3:22-5." Nash, 212 N.J. at 546. We

agree that the improper joinder claim is procedurally barred under Rule 3:22-4.

Further, the PCR court found these arguments were outside of the limited

scope of the remand. We agree. The parameters of the remand were clearly

defined. The purview of the PCR court was "to convene an evidentiary hearing

solely on defendant's contention that counsel rendered ineffective assistance

with respect to the advice counsel gave to defendant concerning the State's plea

offer." Lindsey II, slip op. at 23. "In all other respects, we affirm[ed] the PCR

A-2124-21 16 court's decision to deny defendant's petition without a hearing." Ibid.

Defendant's newly raised argument on improper joinder is beyond the scope of

this appeal, and we need not consider it further.

Affirmed.

A-2124-21 17