STATE OF NEW JERSEY VS. RASOOL MCCRIMMON (05-01-0054, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 1, 2019
• Docket: A-3136-17T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3136-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASOOL MCCRIMMON, a/k/a RASOOL W. MCCRIMMON, DAHEEM MCWRITTE, ANTHONY M. WOODS, and OOKIE,

Defendant-Appellant. ________________________

Submitted April 3, 2019 – Decided May 1, 2019

Before Judges Vernoia and Moynihan.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0054.

Rasool McCrimmon, appellant pro se.

Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM

Defendant Rasool McCrimmon appeals from a November 30, 2017 order

denying his third post-conviction relief (PCR) petition without an evidentiary

hearing. We affirm.

In 2007, defendant was convicted by a jury of first-degree purposeful and

knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2), third-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b), and second-degree possession of

a weapon, N.J.S.A. 2C:39-4(a), and sentenced to an aggregate fifty-year

sentence subject to the requirements of the No Early Release Act, N.J.S.A.

2C:43-7.2. We affirmed defendant's conviction and sentence on direct appeal,

State v. McCrimmon (McCrimmon I), No. A-0477-07 (App. Div. Aug. 18,

2011), and the Supreme Court denied defendant's petition for certification, State

v. McCrimmon, 209 N.J. 232 (2012).

Defendant filed a PCR petition in 2012, asserting in part that his trial

counsel was ineffective by failing to inform him that he was exposed to a

minimum sentence of thirty years without parole if convicted of murder at trial.

Defendant asserted that had he been advised of his sentencing exposure, he

A-3136-17T4 2 would have accepted the State's seven-year plea offer and not proceeded with

the trial.1

The PCR court conducted an evidentiary hearing. Defendant's trial

counsel testified he discussed the State's plea offer with defendant and, although

he did not have a specific recollection of discussing with defendant the minimum

sentence that could be imposed if defendant was convicted at trial, he could not

"conceive of" not telling defendant about his minimum sentencing exposure and

"at some point" he would have explained the exposure to defendant. The court

found trial counsel's testimony credible and that trial counsel explained the

minimum sentencing exposure to defendant prior to defendant's rejection of the

plea offer. The court entered an order denying defendant's PCR petition, and

defendant appealed.

On defendant's direct appeal from the PCR court's order, we found "the

record support[ed] the PCR court's conclusion that trial counsel advised

defendant of his minimum sentencing exposure if convicted at trial," noted the

PCR court credited trial counsel's testimony to that effect and deferred to the

court's factual findings. State v. McCrimmon (McCrimmon II), No. A-5818-13

1 Defendant asserts that the State's plea offer was communicated after the commencement of the trial. A-3136-17T4 3 (App. Div. Feb. 16, 2017) (slip op. at 11-12). We concluded defendant neither

demonstrated his trial counsel's performance was deficient nor that "if

[defendant] had been advised of his minimum sentencing exposure, there is a

reasonable probability he would have accepted the State's plea offer." Id. at 13.

We affirmed the PCR court's denial of the petition, id. at 25, and the Supreme

Court denied defendant's petition for certification, State v. McCrimmon, 233

N.J. 119 (2017).

On April 2, 2015, defendant filed a second PCR petition. Defendant

claimed that his trial counsel was ineffective by failing to investigate a purported

key witness. In a July 16, 2015 order, the court denied the petition without an

evidentiary hearing. Defendant did not appeal from the court's denial of his

second PCR petition.

On November 30, 2016, defendant filed his third PCR petition in which

he reprised his assertion that his trial counsel was ineffective by failing to advise

him of his minimum sentencing exposure if convicted at trial prior to his

decision to reject the State's plea offer and proceed to trial. In support of the

petition, defendant presented a March 22, 2016 affidavit from his trial counsel

stating "[t]here is a distinct possibility that [he] did not advise [defendant] that

if the trial resulted in a conviction, he would be facing [thirty] years to life in

A-3136-17T4 4 prison." Defendant argued trial counsel's assertion that there was a possibility

he did not advise defendant about his minimum sentencing exposure constituted

a newly discovered factual predicate for the filing of a third PCR petition under

Rule 3:22-4(b)(2)(B).

In a detailed November 30, 2017 written decision and order, the PCR court

denied the petition. The court explained that Rule 3:22-4(b) requires the

dismissal of a second or subsequent PCR petition unless the defendant

demonstrates that it is timely under Rule 3:22-12(a)(2), and, in pertinent part, 2

alleges on its face:

[T]hat the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted.

[R. 3:22-4(b)(2)(B).]

The court also noted that the pertinent portion of Rule 3:22-12(a)(2) provides

that second or subsequent PCR petitions may not be filed more than one year

after "the date on which the factual predicate for the relief sought was

2 Defendant relies solely on subsection (B) of Rule 3:22-12(a)(2) to support the filing of his third PCR petition. A-3136-17T4 5 discovered, if that factual predicate could not have been discovered earlier

through the exercise of reasonable diligence." R. 3:22-12(a)(2)(B).

The court found defendant's third PCR petition was not timely filed. R.

3:22-12(a)(2)(B). The court noted that the factual predicate supporting the

petition is trial counsel's assertion that there is a possibility he did not discuss

with defendant his minimum sentencing exposure. The court explained,

however, that trial counsel's discussions with defendant concerning his

minimum sentencing exposure were addressed during counsel's testimony at the

October 25, 2013 evidentiary hearing on the first PCR petition, the PCR court

on the first petition accepted trial counsel's testimony he would have discussed

the sentencing exposure with defendant "as it was his practice to do so," and

defendant failed to demonstrate that the newly-minted factual predicate "could

not have been discovered earlier through the exercise of reasonable diligence."

The court noted that the identical issue—what defendant's trial counsel told him

about his sentencing exposure—was the subject of the evidentiary hearing on

his first PCR petition and that trial counsel's certification does not raise any

issues that were not previously addressed during the proceedings on the first

PCR petition.

A-3136-17T4 6 The court further found that even if the petition was timely, it is barred

under Rule 3:22-4(b)(2)(B) because defendant failed to demonstrate the factual

predicate could not have been discovered earlier through the exercise of

reasonable diligence, and the factual predicate, when considered in light of the

evidence as a whole, does not raise a reasonable probability that the relief sought

would be granted. The court noted that trial counsel's certification also states

that there were never any meaningful settlement negotiations with the State

because it was counsel and defendant's view that the State's case was weak

because it was dependent on a single witness who they viewed as not credible.

Defendant appealed the PCR court's order denying the petition.

Defendant offers the following arguments for our consideration:

POINT I

THE PCR JUDGE ERRED BY DENYING PETITIONER'S APPLICATION FOR POST CONVICTION RELIEF UNDER [RULE] 3:22- 12(a)(2).

POINT II

PCR COURT ERRED WHEN HE DENIED THE PETITION UNDER [RULE] 3:22-4(B)(2)(B).

Where, as here, the court denied defendant's PCR without an evidentiary

hearing, we "conduct a de novo review" of the court's order. State v. Jackson,

A-3136-17T4 7 454 N.J. Super. 284, 291 (App. Div.) (quoting State v. Harris, 181 N.J. 391, 421

(2004)), certif. denied, 236 N.J. 25 (2018). We have conducted that review

here, considered defendant's arguments in light of the record and find they are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2). We affirm substantially for the reasons set forth in the court's written

decision and order, and add only the following comments.

Defendant's trial counsel's certification, which provides the singular

purported factual predicate supporting the third PCR petition, does not

contradict the testimony he offered during the October 2013 evidentiary hearing

on the first PCR petition or assert any new facts that were not considered and

addressed by the court during the October 2013 evidentiary hearing. Trial

counsel's March 2016 certification allows only a possibility he did not discuss

with defendant his sentencing exposure. However, trial counsel acknowledged

at the October 2013 hearing he had no specific recollection of informing

defendant of his minimum sentencing exposure if he was convicted at trial and,

thus, acknowledged at that time there was a "possibility" he did not advise

defendant about his sentencing exposure. But following the evidentiary hearing,

the PCR court found credible trial counsel's other testimony he could not

conceive of not advising defendant of his sentencing exposure and he would

A-3136-17T4 8 have done so at some point. We affirmed the court's findings on defendant's

direct appeal from the denial of his first PCR petition. McCrimmon II, slip op.

at 11-12.

The factual predicate supporting the third PCR petition was either known

to defendant or could have been learned through the exercise of reasonable

diligence no later than during the October 2013 evidentiary hearing on the first

PCR petition. As correctly determined by the PCR court, defendants' third PCR

petition was therefore time barred under Rule 3:22-12(a)(2)(B). See Jackson,

454 N.J. Super. at 292-93 (explaining that the one-year time limitation for the

filing of a second or subsequent PCR petition may not be enlarged). Moreover,

because the PCR court on defendant's first petition was aware of, but rejected,

the possibility that trial counsel did not inform defendant of his sentencing

exposure, the record wholly undermines any claim that trial counsel's newly

proffered statement raises a reasonable probability that PCR would be granted.

R. 3:22-4(b)(2)(B).

Defendant also fails to demonstrate that there is a reasonable probability

that but for his counsel's alleged failure to inform him of his sentencing

exposure, he would have accepted the State's plea offer and not proceeded with

the trial. See State v. O'Donnell, 435 N.J. Super. 351, 376 (App. Div. 2014)

A-3136-17T4 9 (explaining that to obtain PCR based on alleged ineffective assistance of counsel

related to entry of a plea, the defendant must present "sufficient evidence to

show 'a reasonable probability that, but for counsel's errors, [he] would not have

pleaded guilty and would have insisted on going to trial'" (quoting Hill v.

Lockhart, 474 U.S. 52, 59 (1985))). Defendant further failed to demonstrate that

"had he been properly advised, it would have been rational for him to decline

the plea offer and insist on going to trial and, in fact, that he probably would

have done so[.]" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011)

(citing Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). His conclusory

assertions to that effect are insufficient to sustain his burden. See State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (holding "bald

assertions" are insufficient to sustain a defendant's burden of establishing

entitlement to PCR).

Trial counsel's certification explains that neither he nor defendant were

interested in a plea agreement because they "were of the mutual opinion that the

State's case was very weak because the only alleged eyewitness to the crime . . .

had given contradictory versions of what had occurred." Trial counsel further

states "there was no physical evidence that linked [defendant] to the murder,"

the "critical issue" at trial was the "credibility" of the eye witness whose

A-3136-17T4 10 "testimony was fraught with contradictions," and he "advised [defendant] that

there was a strong likelihood that he would be acquitted."

Trial counsel's certification demonstrates that based on a reasoned

assessment of the State's case, he and defendant were not interested in a plea

agreement because they shared the view defendant would be acquitted. Thus,

the certification undermines any claim it would have been rational for defendant

to have rejected the plea and proceeded with the trial, and he would have done

so. Maldon, 422 N.J. Super. at 486. The record supports the PCR court's finding

that the purported newly discovered factual predicate for defendant's third PCR

petition fails to raise a reasonable probability that PCR would be granted. See

Affirmed.

A-3136-17T4 11