State v. Hooper

208 A.3d 38, 459 N.J. Super. 157
CourtNew Jersey Superior Court Appellate Division
DecidedMay 10, 2019
DocketDOCKET NO. A-3436-16T3
StatusPublished
Cited by16 cases

This text of 208 A.3d 38 (State v. Hooper) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hooper, 208 A.3d 38, 459 N.J. Super. 157 (N.J. Ct. App. 2019).

Opinion

ACCURSO, J.A.D.

*163Defendant Lewis Hooper appeals his sentence on a nine-count indictment and the trial court's denial of his motion to withdraw his open plea after sentencing based, in part, on a claim of ineffective assistance of counsel. Because we conclude the court must hold an evidentiary hearing on defendant's claim of ineffective assistance of counsel in connection with his plea, we reverse *164the order denying his motion and remand for that hearing. We also vacate defendant's sentence on account of the court's failure to address the Yarbough 1 factors after determining to impose an extended-term sentence and remand for resentencing, if necessary, following the hearing on defendant's motion to withdraw his plea.

In January 2013, defendant and two confederates, Chinikka Lockhart and Mohamed Kamara, agreed to arm themselves with a gun and go to the home of Mario Lombardo, Jr. to steal his marijuana. After Lombardo answered the door to Lockhart, defendant and Kamara stepped inside while Lockhart slipped back onto the porch. Defendant pointed the gun at Lombardo while Kamara rifled Lombardo's pockets. After Kamara wrested the marijuana from Lombardo, Lombardo fell backward as Kamara turned to flee. Before following Kamara out the door, defendant shot Lombardo.

*42The bullet struck Lombardo in the head, shattering his skull. After several surgeries and a year in the hospital, Lombardo, twenty-two years old at the time of the shooting, remains grievously injured. He is paralyzed on one side and cannot speak. Defendant claimed he shot Lombardo after seeing him reach toward his waistband, presumably for a gun. The State claimed defendant shot Lombardo to prevent him from identifying his assailants. Both the robbery and the shooting were captured, at least partially, on security cameras mounted in Lombardo's porch and front hall. Defendant can be seen firing the shot that struck Lombardo, but Lombardo is not visible in the frame.

Defendant was indicted on charges of second-degree conspiracy to commit armed robbery and robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) and (2) (count four); second-degree unlawful *165possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count six); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count seven); third-degree hindering apprehension or prosecution of oneself, N.J.S.A. 2C:29-3(b)(4) (count eight); and third-degree hindering apprehension or prosecution of another, N.J.S.A. 2C:29-3(a)(7) (count nine).

Defendant, twenty-nine years old at the time of these offenses, was extended-term eligible. He had been convicted of third-degree theft committed in 2005, when he was twenty-one years old, and sentenced to probation in 2006. In 2009, he violated probation by committing a drug offense. He pleaded guilty to the violation of probation and to third-degree possession of CDS and was sentenced in March 2010 to five years in State prison with a two-and-a-half-year parole ineligibility term. Because both crimes were committed within ten years of the offenses for which defendant was being sentenced in 2016, he qualified for extended-term sentencing as a persistent offender. See N.J.S.A. 2C:44-3(a).

Near the time of defendant's arraignment, the State offered to recommend a sentence of fifty years in exchange for defendant pleading guilty to conspiracy, armed robbery, robbery, attempted murder and unlawful possession of a weapon. Defendant rejected that offer.

That is where negotiations stood for nearly three years. On May 11, 2016, however, the first assistant prosecutor wrote to defendant's counsel confirming their "recent conference" at which defendant "presented the State with a counter offer of twenty (20) years in a New Jersey State Prison." The letter confirmed the State's rejection of that offer but stated the writer "will present to the [victim's] family, a counter offer which will mandate the defendant serving approximately thirty (30) years in a New Jersey State Prison." What happened next is detailed in two "affidavits"2

*166presented by defense counsel, the first assistant deputy public defender and her second chair, then an assistant deputy public defender, now a lawyer in private practice.

Those lawyers aver that they attended a pre-trial conference on June 13, 2016, where they discussed their plea negotiations with the prosecutor in the chambers *43of the trial judge. They contend "[t]he State's final offer was a thirty-year sentence subject to an eighty-five percent parole disqualifier under the No Early Release Act-a sentence that would have required Mr. Hooper to consent to be sentenced as a persistent offender, in other words, [to] a discretionary extended term." Counsel claim they responded by advising that defendant "was interested in a plea but not 30 years." The first assistant deputy public defender further claims she told the prosecutor she "would never advise [her] client to accept a plea that called for a discretionary extended term, particularly given his minimal prior record." Indeed, she had written to defendant days earlier advising she intended to argue defendant was not extended-term eligible.3

In response to her unwillingness to recommend defendant agree to be sentenced to an extended term, counsel avers the prosecutor suggested defendant could enter a guilty plea to multiple counts of the indictment with consecutive sentences. The defense lawyers claim the judge interjected "that he did not see it as a 'consecutive case,' " characterizing it "as a 'robbery gone bad,' " and "that this case would not result in consecutive sentences given the facts and *167circumstances." Counsel claim that following that conference, they "were confident that [the judge] would not run the counts consecutively, should Mr. Hooper choose to plead without a sentencing recommendation from the State."

Accordingly, they met with their client three days later and "advised him that if the [j]udge finds that he meets the statutory criteria as a persistent offender, he could receive as much as the State's thirty year offer, but that the [j]udge was almost assuredly going to sentence him to something between ten and thirty years in State prison." The first assistant deputy public defender averred she told defendant

that an open plea would result in a sentence between 10 and 30 years, but would ultimately be left to [the judge]. We told him that since the current plea offer was 30 years, it was highly unlikely that the [j]udge would go above that number. We told Mr. Hooper that the [j]udge is never bound by plea offers, but since we had a conference, [the judge] was aware of the sentence that the State was recommending.

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Bluebook (online)
208 A.3d 38, 459 N.J. Super. 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hooper-njsuperctappdiv-2019.