NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2711-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALEC P. DESANDO,
Defendant-Appellant. ______________________________
Argued May 29, 2019 – Decided June 28, 2019
Before Judges Yannotti and Gilson.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 14-02-0116.
Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Brian J. Neary and Jane Personette, of counsel and on the brief).
Michele C. Buckley, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Jennifer Davenport, Acting Union County Prosecutor, attorney; Reana Garcia, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from an order of the Law Division dated January 8,
2018, which denied his petition for post-conviction relief (PCR) and his motion
to withdraw his guilty plea. We affirm in part, reverse in part, and remand for
an evidentiary hearing on the PCR petition.
I.
On November 18, 2013, M.D. was sitting in a parked Honda Accord in
the parking lot of a 7-Eleven convenience store in Hillside. 1 She was waiting
for her boyfriend to return from the store. Two men with guns approached M.D.
and forced her to exit the vehicle and lie on the ground.
The men then entered the Honda and remained briefly before leaving the
area. After the men drove away in the car, M.D. informed her boyfriend what
had happened. They called 9-1-1, and the police arrived shortly thereafter.
According to defendant, other than a scraped knee, M.D. did not suffer any
physical injury.
The police located and followed the vehicle in Newark. The officers
activated the emergency lights and siren on their vehicle. One of the officers
stated that defendant was driving the car, but exited on the passenger side and
1 We use initials to identify certain individuals to protect their privacy. A-2711-17T2 2 fled on foot. The officer observed defendant discard two handguns, one silver
and one black. The police took defendant into custody and he provided a
statement.
On February 20, 2014, a Union County grand jury charged defendant with
first-degree carjacking, N.J.S.A. 2C:15-2 (count one); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (counts two and three); second-
degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(counts four and five); third-degree eluding arrest, N.J.S.A. 2C:29-2(b) (count
six); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count seven); and third-
degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count eight). On May 4,
2015, defendant pled guilty to first-degree carjacking.
On August 21, 2015, the trial court sentenced defendant to ten years of
incarceration, with an eighty-five percent period of parole ineligibility, pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court dismissed
the other charges. Thereafter, defendant filed a motion to modify his sentence
pursuant to Rule 3:21-10. The court granted the motion and on January 7, 2016,
filed an amended judgment of conviction (JOC), which reduced defendant's
custodial term to nine years, with the eighty-five percent period of parole
ineligibility under NERA.
A-2711-17T2 3 On October 13, 2015, defendant filed an appeal, which was docketed as
A-1212-15. He argued that the trial court erred by failing to impose a sentence
in the second-degree range. After the trial court modified the sentence,
defendant filed a notice of appeal from the amended JOC, which was docketed
as A-4178-15. Defendant then filed a motion to consolidate the appeals. We
denied the motion and dismissed the appeal under A-1212-15. Defendant then
withdrew the appeal under A-4178-15, and that appeal was dismissed.
On July 20, 2017, defendant filed a verified petition for PCR and a motion
to withdraw his guilty plea. Defendant claims he was denied the effective
assistance of counsel. It appears that defendant was represented by two
attorneys. In his petition, defendant asserts that in November 2013, he had just
turned nineteen years old. He said he "was feeling depressed and desired to get
high."
A friend from high school, whom defendant identified as Actor # 1, called
and they arranged to get together. Defendant drove his mother's car to Actor #
1's home in Newark. Defendant claims he and Actor # 1 spent a few hours
playing video games, getting high by smoking marijuana, and ingesting a drug
called "Roxy," presumably Roxicodone, an opioid prescription painkiller.
A-2711-17T2 4 Defendant asserts that "before the full effect [of the 'Roxy'] had taken
hold, [he] decided to go home[,]" but Actor # 1 asked defendant to drive him to
another person's home. Defendant states that after they traveled a short distance,
his friend asked him to pull over so another man, whom defendant identified as
Actor # 2, could enter the car. According to defendant, Actor # 2 was older and
had "dreadlocks." Defendant claims he was "[c]onfused and under the
increasing power of the 'Roxy.'"
Defendant asserts that he "felt greatly intimidated" by Actor # 2, who
began to issue commands to defendant, "including the direction of travel." Actor
# 2 then insisted that defendant allow him to drive the car, but defendant resisted.
Defendant asserts that at Actor # 2's direction, he "stopped the car so that [Actor
# 2] could go into a convenience store/bodega."
Defendant states that his fear of Actors # 1 and # 2 "skyrocketed" and his
ability to think clearly grew "weaker by virtue of the chemical cocktail he had
consumed earlier[.]" Actor # 2 returned to the car, and defendant claims he was
"powerless" to resist Actor # 2's insistence on driving. He asserts Actor # 2
issued a "menacing threat."
According to defendant, Actor # 2 drove the car for hours and ignored his
pleas to let him go home. Defendant claims Actor # 2 threatened him, "telling
A-2711-17T2 5 him that if he did not 'shut up, you won't go home to your mother tonight.'"
Defendant asserts he was unable to call or text anyone for help since "his phone
battery had died." Defendant said he was "helpless and terrified."
Defendant claims that "[h]ours into this ordeal," Actor # 2 stopped outside
a 7-Eleven, and engaged in a conversation about a Honda in the parking lot.
Defendant asserts that Actor # 2 "took out a gun and handed it to Actor # 1, who
turned the gun on" defendant and told him he had to go with him. Defendant
says he refused but Actor # 1 insisted, telling him he did not have to do anything
other than accompany him.
Defendant states that he "continued to refuse," and the other men became
"more persistent and more threatening." Defendant was "terrified and
traumatized[,] . . . in fear for his life, and still under the influence" of the
narcotics. He took a cloth handed to him and put it over his face. He "also took
the gun [that had been] forced upon him." He claims this was the only time he
ever held or had been around a gun.
Actor # 1 reached the Honda first. Defendant claims he "wanted no part
of this matter" but he was unable to run away because he was afraid of both
Actor # 1 and Actor # 2, and he was unfamiliar with the "high crime area."
Defendant observed Actor # 1 force a woman out of the passenger seat and onto
A-2711-17T2 6 the ground. He told defendant to go through the woman's pockets, but defendant
refused. Defendant claims he told the frightened woman she would not be
harmed.
Actor # 1 entered the car on the driver's side, "apparently waiting for the
driver to exit the store." Defendant asserts that he asked Actor # 1 if he could
leave, but Actor # 1 refused. A short argument ensued, and Actor # 1 drove
away at high speed. Defendant states that eventually, Actor # 1 "stopped the car
and threw the guns" at him.
Defendant "unthinkingly took" the guns, "exited the passenger side of the
car, and then discarded the guns," which the police later recovered. The police
apprehended defendant, and Actor # 1 drove the Honda away. According to
defendant, Actor # 1 was never pursued or apprehended. Actor # 2 also was not
apprehended.
Defendant notes that he gave a statement to the police. He claims he was
"still under the influence of drugs and traumatized by the events that had
transpired[.]" He states that he gave the police "a different account" than the
account set forth in his petition, "which included an incoherent and untrue
statement that he had been walking for hours from Penn Station."
A-2711-17T2 7 Defendant alleges his attorneys were ineffective because they failed to
pursue a duress defense. He claims he informed his attorney of the sequence of
events detailed in his petition, and they filed a notice of defense based on duress.
He alleges his attorneys "never supported nor adequately explored this defense."
Defendant also alleges he "repeatedly told his attorneys that he was high"
when the police interrogated him, and the version of the events he provided the
police was false. He claims he told his attorneys his "intoxication impaired his
judgment throughout the entire ordeal, including during his interrogation."
Defendant notes that his attorneys filed a motion to suppress his statement, but
it appears counsel did not file a brief in support of that motion.
In addition, defendant claims he told his attorneys he wanted to speak to
the police or persons in the Union County Prosecutor's Office to give "the full
account of what actually transpired" on the night of the carjacking. Trial counsel
allegedly "disregarded [defendant]'s wishes and discourage[d] him from
providing . . . information" to the police or prosecutors. Defendant states that
"in desperation" he reached out to law enforcement "through another channel,"
but one of his trial attorneys "rebuked" him for doing so.
Defendant further states that his trial attorneys did not share "his view of
the case" and they were unwilling "to execute a strategy consistent with [his]
A-2711-17T2 8 wishes and the evidence." He asserts that he wanted to adjourn the plea hearing
so that he could speak with another attorney, but one of his attorneys refused his
request.
Defendant claims he met with his attorneys to discuss the State's plea
offer, which provided for a guilty plea to the first-degree carjacking offense,
dismissal of the other charges, and a recommended sentence of twelve years,
subject to NERA. His mother and father were present during the discussion.
Defendant claims he repeatedly said he did not want to plead guilty. He states
counsel focused on his potential exposure to a sentence longer than twelve years.
Defendant states that counsel's caution was appropriate, but "counsel
failed to consider the significance of the duress" and intoxication defenses, and
"the significance of the fact" that others were involved in the incident and they
were never apprehended or indicted. Defendant claims he "yielded to his
attorney[s] and openly sobbed" when he completed the plea forms.
Defendant also asserts that before sentencing, he told his trial attorneys
he wanted to withdraw his guilty plea. His attorneys "declined to file the
appropriate application[.]" He claims that under the applicable law, he was
entitled to withdraw his plea.
A-2711-17T2 9 The trial court heard oral argument on the applications, and thereafter filed
a decision and order dated January 8, 2018, which denied defendant's PCR
petition and the motion to withdraw the guilty plea. The court found that
defendant had not established a prima facie case of ineffective assistance of
counsel, and an evidentiary hearing was not required. The court also considered
the factors enumerated in State v. Slater, 198 N.J. 145, 157-58 (2009), and
decided that defendant should not be permitted to withdraw his plea. This appeal
followed.
II.
On appeal, defendant argues the trial court erred by denying his PCR
petition. He contends he established a prima facie case of ineffective assistance
of counsel, and the court should have conducted an evidentiary hearing on the
petition.
To establish ineffective assistance of counsel, a defendant must satisfy the
two-part test established in Strickland v. Washington, 466 U.S. 668, 687 (1984),
and later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under the test, a defendant first "must show that counsel's performance was
deficient." Strickland, 466 U.S. at 687. Defendant must establish that counsel's
performance "fell below an objective standard of reasonableness" and "that
A-2711-17T2 10 counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. at 687-88.
Defendant also must show "that the deficient performance prejudiced the
defense." Id. at 687. To establish prejudice, "[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. A reasonable probability is
a probability sufficient to undermine confidence in the outcome" of the matter.
Id. at 694.
On appeal, defendant claims he was denied the effective assistance of
counsel because his attorney failed to: (1) pursue a defense of duress; (2) litigate
significant and viable issues under Miranda v. Arizona, 384 U.S. 436 (1966) and
State v. Driver, 38 N.J. 223 (1962); (3) provide effective assistance during the
plea-bargain stage of the proceedings; and (4) file a motion to permit him to
withdraw his plea. He contends the PCR court erred by finding he did not
establish a prima facie case of ineffective assistance of counsel.
Here, the PCR court found that defendant's trial attorneys made a valid
strategic decision to recommend acceptance of the State's plea offer, rather than
pursue the duress defense. The judge noted that to establish a duress defense
under N.J.S.A. 2C:2-9(a), defendant had to show that "he was coerced" to
A-2711-17T2 11 engage in criminal conduct "by the use of, or a threat to use, unlawful force
against his person or the person of another, which a person of reasonable
firmness in his situation would have been unable to resist." The judge also noted
that N.J.S.A. 2C:2-9(b) provides that the defense is not available if the defendant
"recklessly placed himself in a situation in which it was probable that he would
be subjected to duress."
The judge found that even if defendant's version of the events was true,
"his actions d[id] not meet the objective standard of reasonableness required for
a successful duress" defense. The judge stated that the evidence showed
defendant had the opportunity to flee from the scene, but he did not. The judge
noted that carjacking is a serious offense, which weighed heavily against a
finding that he acted in an objectively reasonable manner.
The judge also noted that even if the jury were to conclude that defendant's
actions were objectively reasonable, defendant had other "hurdles to overcome"
in establishing a duress defense. The judge pointed out that it could be argued
that defendant recklessly placed himself in a situation where he would be
subjected to duress by smoking marijuana and ingesting "Roxy," which impaired
his cognitive ability. Moreover, defendant would be required to testify to
establish this defense, and the State could confront defendant with his prior
A-2711-17T2 12 statement to law enforcement officers, in which he provided what the judge
described as "a completely different version of [the] events[.]"
The judge further commented that there was some indication in the record
that defendant "would not have been an effective witness." The judge pointed
out that at the hearing on his motion to reconsider the sentence, defendant
delivered a rambling statement. The judge concluded that "trial counsel's
decision to pursue a plea agreement instead of [an] affirmative defense of duress
was a sound strategic decision[.]"
In addition, the judge found that trial counsel made a reasonable strategic
decision to pursue a plea bargain rather than litigate Miranda and Driver
motions. The judge stated that litigation of the motions created a risk that the
State would change its plea offer and demand a lengthier prison term. The judge
stated, "Recognizing this, trial counsel pursued a plea agreement instead of
litigation."
The judge also rejected defendant's claim that his trial attorneys provided
ineffective assistance during the plea-bargain process. The judge found that the
record did not support defendant's claim that counsel refused to ask for an
adjournment so that defendant could consult with another attorney and obtain a
second opinion regarding the plea. The judge noted that there was no evidence
A-2711-17T2 13 that defendant requested a second opinion before he entered his plea. Moreover,
the record showed that his attorneys did, in fact, seek an adjournment, defendant
had consulted with another attorney, and defendant obtained a second opinion
before sentencing.
The judge also determined that the record did not support defendant's
claim that his attorneys did not "advise him about the availability of [a] duress
defense." The judge noted that when defendant was sentenced, he stated that at
the time of the offense, he "did feel under duress" but understood he "did not
have a legal defense" of duress. Defense counsel also told the court that
defendant felt coerced, but he understood the coercion did not rise to the level
of duress.
The judge further found that the record did not support defendant's claim
that trial counsel "misadvised [him] about the likelihood of being sentenced [in]
the middle-level range." The judge pointed out that defendant pled guilty to a
first-degree offense, and the plea agreement called for a twelve-year prison term,
which is on the lower-end of the range for first-degree offenses. The court
initially sentenced defendant to a ten-year prison term, and later reduced that
term to nine years.
A-2711-17T2 14 The judge also rejected defendant's contention that his attorney "was
ineffective because he recommended that [defendant] refrain from making
statements to law enforcement[.]" The judge found that such advice was "more
than competent." In addition, the judge rejected defendant's claim that his
attorneys were ineffective because they did not file a motion to allow him to
withdraw his plea. The judge found that such a motion would likely have been
unsuccessful.
We are convinced that the record supports the judge's conclusions that
defendant's trial attorneys were not ineffective in advising defendant about his
sentencing exposure, recommending that defendant make no further comments
to law enforcement, and by failing to file a motion to withdraw the plea. We are
convinced, however, that the judge erred by concluding, based on this record,
that counsel made a reasonable strategic choice to recommend acceptance of the
State's plea offer rather than pursue a duress defense and litigate Miranda and
Driver motions.
As noted, in his opinion, the judge pointed out a number of concerns
counsel may have had with a duress defense. These concerns include evidence
showing that defendant may have recklessly placed himself in a situation where
he could be subject to duress by smoking marijuana and ingesting "Roxy,"
A-2711-17T2 15 evidence showing that defendant had opportunities to flee the scene of the
carjacking, and the need for defendant to testify at trial to support this defense.
The judge found that counsel made a strategic decision to opt for a plea bargain,
after having considered these and other factors, but counsel did not testify and
there is nothing in the record to support the judge's finding.
We note that in evaluating a claim of ineffective assistance of counsel, the
defendant must establish that his attorney's "representation fell below an
objective standard of reasonableness." State v. Pierre, 223 N.J. 560, 578 (2015)
(quoting Strickland, 466 U.S. at 688). Moreover, [a]n attorney is entitled to 'a
strong presumption' that he or she provided reasonably effective assistance, and
a 'defendant must overcome the presumption that' the attorney's decisions
followed a sound strategic approach to the case." Id. at 578-79 (quoting
Strickland, 466 U.S. at 689).
In determining whether counsel's representation was effective, "[j]udicial
scrutiny of counsel's performance must be highly deferential." Id. at 578
(alteration in original) (quoting Strickland, 466 U.S. at 689). Furthermore, if an
attorney investigates the relevant facts and law thoroughly, and "consider[s] all
possible options," the attorney's "trial strategy is 'virtually unchallengeable.'"
A-2711-17T2 16 State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, 466 U.S. at 690-
91).
Here, the record lacked sufficient evidence for the PCR court to determine
that counsel investigated the relevant facts and law thoroughly and considered
all possible options before advising defendant to accept the State's plea offer.
The court did not conduct an evidentiary hearing and, therefore, defense counsel
provided no testimony regarding their representation of defendant, the plea
negotiations, or the reasons they chose to recommend accepting the State's plea
offer and forgo pursuit of a duress defense and the Miranda and Driver motions.
We therefore reverse the court's denial of defendant's petition and remand
the matter for an evidentiary hearing on defendant's claim that his attorneys were
ineffective in choosing to forgo pursuit of a duress defense and litigation of
Miranda and Driver motions, and to recommend acceptance of the State's plea
offer.
III.
Next, defendant argues that the trial court erred by denying his motion to
withdraw his plea. He contends that because of counsel's ineffectiveness, he did
not enter his plea voluntarily, knowingly, or intelligently.
A-2711-17T2 17 Motions to withdraw guilty pleas are governed by Rule 3:21-1. After a
defendant has been sentenced, he or she must demonstrate a "manifest injustice"
to warrant a withdrawal. R. 3:21-1; see also Slater, 198 N.J. at 156.
"[T]he burden rests on the defendant to establish why the motion to
withdraw his or her guilty plea should be granted." State v. Luckey, 366 N.J.
Super. 79, 86 (App. Div. 2004). In making that determination, the court must
consider and balance four factors: "(1) whether the defendant has asserted a
colorable claim of innocence; (2) the nature and strength of defendant's reasons
for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair advantage to the accused."
Slater, 198 N.J. at 157-58.
Regarding the first factor, the judge found that defendant has a colorable
claim of innocence. In his opinion, the judge noted that although defendant's
defense was unlikely to be successful, defendant consistently maintained that he
was under duress at the time of the carjacking.
The judge found, however, that defendant had not offered strong reasons
for withdrawing the plea. The record shows that defendant was not misinformed
about the plea agreement. Defendant was advised of the maximum possible
sentence, and the court ultimately sentenced defendant to nine years of
A-2711-17T2 18 incarceration, rather than the twelve-year prison term recommended under the
plea agreement.
In addressing the third factor, the judge acknowledged that defendant’s
conviction was the result of a plea agreement. Finally, regarding the fourth
factor, the judge found that the State would be prejudiced if required to try the
matter because four years has passed since the crime. The judge therefore
concluded that the motion should be denied.
On appeal, defendant argues that he satisfied the first and second Slater
factors because he has consistently maintained he committed the carjacking
under duress. He further argues that while the plea was entered pursuant to a
plea agreement, that factor should have been given "the least weight" because
plea bargains benefit both the State and defendant. He also argues that he
established that the State would not be significantly prejudiced if he were
allowed to withdraw his plea.
We are convinced, however, that there is sufficient credible evidence in
the record to support the trial court's decision to deny the motion, and the court's
decision was not a mistaken exercise of discretion. As noted, the judge found
that defendant presented a colorable claim of innocence, but the other Slater
factors predominated and warranted denial of the motion.
A-2711-17T2 19 We note, however, that our conclusion that the court did not err by denying
the motion to withdraw the plea does not preclude a finding on remand that
defendant was denied the effective assistance of counsel when his attorneys
elected to recommend acceptance of the State's plea offer in lieu of pursuing a
duress defense and litigating the Miranda and Driver issues. As we have
explained, that determination ultimately turns on whether counsel made a
reasonable strategic decision to recommend acceptance of the plea agreement,
which should be resolved after an evidentiary hearing.
Accordingly, we affirm the denial of defendant's motion to withdraw his
plea, reverse the denial of defendant's PCR petition, and remand for an
evidentiary hearing on the PCR petition in conformance with this opinion. We
do not retain jurisdiction.
A-2711-17T2 20