State v. Preciose

• Citation: 129 N.J. 451,609 A.2d 1280
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Anthony PRECIOSE, Defendant-Appellant.
• Decision Date: 03 August 1992
• Court: New Jersey Supreme Court

Page 451

129 N.J. 451

609 A.2d 1280

STATE of New Jersey, Plaintiff-Respondent, v. Anthony PRECIOSE, Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 5, 1992.

Decided Aug. 3, 1992.

Claudia Van Wyk, Deputy Public Defender II, for defendant-appellant (Wilfredo Caraballo, Public Defender, Claudia Van Wyk and Pamela Lynn Brause, Designated Counsel, of counsel and on the briefs).

Mark P. Stalford, Asst. Prosecutor, for plaintiff-respondent (John Kaye, Monmouth County Prosecutor, attorney).

Karen Fiorelli, Deputy Atty. Gen., argued the cause for amicus curiae, Atty. Gen. of N.J. (Robert J. Del Tufo, Atty. Gen., attorney).

The opinion of the Court was delivered by

STEIN, J.

Defendant filed a petition for post-conviction relief based largely on a claim of ineffective assistance of counsel. Upholding the denial of relief, the Appellate Division expressly relied on Rule 3:22-4, which bars petitioners from raising claims that could have been brought on direct appeal. The court also invoked the United States Supreme Court's decision in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), which limits federal habeas review when state courts explicitly set forth state procedural grounds for denying petitioners' claims. The Appellate Division erred in denying defendant's petition on procedural grounds. We hold that defendant's claim was cognizable on post-conviction review and we therefore remand the matter to the trial court for an evidentiary hearing. Moreover, we caution our reviewing courts against denying post-conviction petitions on procedural grounds in order to limit a defendant's right to seek relief through federal habeas corpus. Our compelling judicial interest in sustaining only those convictions free from constitutional error is disserved by decisions of our courts or, for that matter, federal courts that limit the availability of federal habeas review in cases in which such review may be warranted.

I

According to the State, twenty-two-year-old Anthony Preciose broke into a private residence, robbing four occupants at knifepoint and sexually assaulting one of them. Although the assailant wore a mask, one victim identified defendant based on his voice. A grand jury indicted defendant on twenty-three counts: theft, N.J.S.A. 2C:20-3 (count 1); receiving stolen property, N.J.S.A. 2C:20-7a (count 2); burglary, N.J.S.A. 2C:18-2 (count 3); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count 4); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count 5); criminal restraint, N.J.S.A. 2C:13-2(a) (counts 6, 7, 8 and 9); terroristic threats, N.J.S.A. 2C:12-3 (counts 10, 11 and 12); armed robbery, N.J.S.A. 2C:15-1(a) (counts 13, 14 and 15); attempted armed robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1(a) (count 16); aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts 17, 18 and 19); aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count 20); aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and N.J.S.A. 2C:14-2(a)(4) (counts 21 and 22); and aggravated criminal sexual contact, N.J.S.A. 2C:14-3 (count 23).

Under a plea agreement, defendant entered a retraxit guilty plea to burglary, armed robbery, and attempted armed robbery, and promised to testify for the State in a separate criminal matter. In exchange, the State recommended that defendant receive a forty-year maximum term with a seventeen-and-a-half-year parole-ineligibility period. At the April 16, 1983, plea hearing, the court established the factual basis for the plea through a series of questions:

Q. Did you enter the residence of the home of [ ] with the purpose of committing and [sic] offense?

A. Yes.

Q. What offense did you intend to commit?

A. Burglary, armed robbery.

* * * * * *

Q. And what was the instrument, sir, that you had with you on that day in Monmouth Hills?

A. A knife.

Asked whether he had committed armed robbery against four occupants of the house, defendant responded affirmatively. Defendant later offered an apology at his June 3, 1983, sentencing hearing:

I'd like to first off say, I'm sorry, [I] caused a lot of people a lot of troubles and I know I should be punished for what I did. There is no, nothing justifiable about it at all. I have some problems. I need help to deal with them and I feel I can be rehabilitated.

The court sentenced defendant in accordance with the plea agreement to an aggregate term of forty years with a seventeen-and-a-half-year parole-ineligibility period.

Defendant maintains his innocence, claiming that his attorney pressured him into pleading guilty. Although defendant admits planning the robbery, he contends that his associate actually executed the crime because defendant was too intoxicated at the time. The presentence report noted that

[defendant] steadfastly denied the actual commission of the present offense.

* * * * * *

When questioned as to why he pled guilty to the present offense, [defendant] stated it "was a matter of pressure[ ]." He did not implicate [his friend] at the time of his arrest as he did not feel there was sufficient evidence to convict him and the defendant felt that if he couldn't be convicted, [his friend] would also not be convicted.

Defendant also claims that his counsel advised him to offer the apology at his sentencing hearing.

Defendant's trial counsel filed a cursory appeal arguing that the trial court had abused its discretion by sentencing defendant to an excessive parole-ineligibility period. On March 22, 1984, the Appellate Division affirmed defendant's sentence. Defendant wrote a letter, dated March 23, 1984, requesting the Office of the Clerk to disregard any appeal briefs filed on his behalf by his counsel. In that letter, defendant alleged that trial counsel was "negligent and incompetent" and that he had authorized counsel only to file a notice of appeal. Defendant then filed a pro se petition for certification, which this Court denied. 103 N.J. 449, 511 A.2d 636 (1986). On June 2, 1988, defendant filed a petition for post-conviction relief.

Defendant argues that he pled guilty as a result of ineffective assistance of counsel. Defendant had retained private counsel for trial (trial counsel). Defendant first asserts that his attorney was not ready for trial. Indeed, the trial court had granted counsel's motion for an adjournment but had ordered him to reimburse the County for having incurred witness travel expenses on the day originally scheduled for trial. In an affidavit accompanying his appeal of the denial of his petition for post-conviction relief, defendant sets forth detailed allegations of ineffective assistance of counsel:

4. On or about March 23, 1988, [trial counsel] visited me in jail and spoke with me for approximately twenty minutes regarding my case. This was the only time we discussed my case outside of the courtroom.

* * * * * *

6. On April 6, 1983, [ ] a substitute attorney who was completely unknown to me, appeared on my behalf in court.

7. [The substitute attorney] informed me that [trial counsel] was away on vacation. In addition, [he] told me he had just received my case that day and no witnesses had been subpoenaed on my behalf.

8. At this time, I requested an adjournment and was told by [the substitute attorney] that due to the [prior adjournment], no more continuances were available.

9. After relating the facts of my case maintaining my innocence to [the substitute attorney], I was told I would most certainly be found guilty, especially since there were no witnesses to call in my defense.

10. I was then informed by [the substitute attorney] that I faced nearly 290 years in prison.

11. On that same day, [the substitute attorney] negotiated a plea agreement which stipulated a 40 year sentence with a 20 year parole ineligibility for five charges. I was told by [him] the five charges normally carried a 90 year sentence with a 45 year parole ineligibility. In light of the circumstances, I pled guilty to these five charges.

* * * * * *

13. Throughout the time period between my plea and sentencing, [trial counsel] never contacted me.

14. On June 3, 1983, the day of sentencing, I asked [trial counsel] if I could withdraw my plea. I was informed that there was nothing I could do about it now and could not take my plea back. He then reassured me that I would not receive the sentence stipulated on the plea agreement.

* * * * * *

16. After sentencing, it was my wish to have the Public Defender's Office appeal my case. I never retained [trial counsel] to appeal my case and in fact, had requested he turn my case over to the Public Defender's Office.

17. On March 12, 1984, I received a copy of a brief [trial counsel] had filed on my behalf. In an attempt to stop the brief, I filed a motion to quash the brief which failed.

Although defendant should have moved before the Appellate Division for leave to expand the record to include this affidavit, its obvious relevance leads us to conclude that we should make it a part of the appellate record. R. 2:10-5. In that connection, we also note that the petition for post-conviction relief included less detailed but similar allegations of ineffective assistance of counsel.

@Moreover, at the hearing for post-conviction relief, defendant's new counsel (defense counsel), appointed by the Public Defender's office, argued that defendant had been denied effective assistance of trial and appellate counsel and requested an evidentiary hearing. Defense counsel adduced further arguments in support of defendant's claim. First, he asserted that trial counsel had failed to challenge the identification of defendant as the actual perpetrator of the crime:

The first identification that was made was made in a show-up context and by that, I mean, within approximately an hour of the crimes, police officers took Mr. Preciose into custody in Highlands and brought him back to the scene of the crime * * * where he was displayed to the victims...