RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5141-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SCOTT WAYNE HARRIS,
Defendant-Appellant.
_____________________________
Argued November 9, 2018 – Decided January 18, 2019
Before Judges Simonelli, Whipple and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 92-02-
0158.
Louis H. Miron, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Louis H. Miron, on the brief).
Andre R. Araujo, Assistant Prosecutor, argued the
cause for respondent (Jennifer Webb-McRae,
Cumberland County Prosecutor, attorney; Andre R.
Araujo, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant, Scott Wayne Harris, appeals from a May 12, 2016 denial of
his third petition for post-conviction relief (PCR). Defendant alleged his second
trial counsel was constitutionally ineffective because she failed to communicate
a plea offer. The court granted defendant an evidentiary hearing but concluded
his ineffective assistance claim was meritless and denied relief. We agree and
affirm for the following reasons.
This is the fourth time this Court has reviewed defendant's case, either on
direct appeal or PCR. The facts surrounding the charged offenses are
summarized in the direct appeal, State v. Harris, A-5202-92 (App. Div. Nov. 17,
1995), and we need not repeat them here. We focus our attention on defendant's
allegations in his PCR petition concerning the conduct of his trial counsel in
1992 and the revival of a tainted jury claim he first brought in a 1996 PCR
petition.
On February 6, 1992, defendant was charged with: first-degree attempted
murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(2); first-degree sexual aggravated assault, N.J.S.A. 2C:14-2(a); third-
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2
degree terroristic threats, N.J.S.A. 2C:12-3(a); third-degree possession of a
weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); first-degree kidnapping,
N.J.S.A. 2C:13-1(b); second-degree witness tampering, N.J.S.A. 2C:28-5(a);
and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1). A jury
convicted defendant of all counts except attempted murder. After we modified
the sentence imposed by the trial judge, defendant was sentenced to a fifty-year
term with a twenty-five-year parole disqualifier.
In 1996, defendant filed his first PCR petition. He alleged someone
named "Fletcher Shay Skerl" contacted juror T.S. and informed her of
defendant's criminal history and expressed doubts about defendant's innocence.
The first PCR judge conducted an evidentiary hearing but denied relief because
he did "not believe [defendant's] testimony" and found defendant's claim "to be
incredible." We affirmed.
In 1997, defendant filed his second PCR petition alleging the police
violated his Miranda1 rights, the trial judge gave incorrect instructions
concerning the requirement for a unanimous verdict and defendant's trial counsel
rendered ineffective assistance. The PCR judge denied defendant an evidentiary
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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3
hearing, we affirmed, and our Supreme Court denied certification. Defendant's
petition for a writ of habeas corpus was unsuccessful.
On September 30, 2013, defendant filed another PCR petition. Defendant
alleged his trial counsel was constitutionally ineffective because she did not
communicate a plea offer extended by the State. As proof, defendant submitted
a newspaper clipping, allegedly discovered in 2013, reporting the State extended
a plea offer to defendant of forty years imprisonment with twenty-year parole
ineligibility for the first-degree kidnapping and second-degree aggravated
assault charges. On May 14, 2014, defendant filed a supplemental brief reviving
his tainted jury claim.
On July 29, 2014, the court appointed counsel to represent defendant on
the ineffective assistance claim but denied assignment of counsel to the jury
tampering issue. We denied defendant's motion for leave to appeal the court's
order. While an appeal to the Supreme Court was pending, another judge
ordered counsel to be appointed to all issues raised in defendant's third PCR
petition and granted defendant's motion to change venue.
The judge, who then considered defendant's third PCR petition, authored
a written opinion finding defendant stated a prima facie case of ineffective
assistance of counsel and ordered an evidentiary hearing. The judge concluded
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defendant's ineffective assistance claim was timely and not barred by Rule 3:22-
12(a)(2) because defendant claimed he first learned of the uncommunicated plea
deal in 2013 and filed a third PCR petition the same year. However, the judge
held Rule 3:22-5 barred defendant's jury tampering charge because it was
previously adjudicated on the merits upon defendant's first PCR petition.
We discern the facts relevant to defendant's ineffective assistance claim
from the hearing record. In February 1992, Linda Lawhun was appointed to
represent defendant. She described defendant as the most "engaged" client she
ever had and characterized their working relationship as "very good." The
prosecutor had a similar memory of defendant and recalled him as "the most
involved of any of the defendants I've ever prosecuted." Defendant constantly
wrote letters to Lawhun to discuss his case, including several prior to trial that
are at the heart of this PCR petition.
Prior to trial, defendant wrote a letter to his first trial counsel, insisting he
wanted a plea of twenty-to-twenty-five years flat so he would be released from
jail by age sixty-five. Lawhun testified defendant wanted a plea of twenty years
to avoid maximum sentencing exposure. Instead, the prosecutor only offered
defendant a plea of first-degree kidnapping and second-degree aggravated
assault with no sentencing recommendation, meaning defendant's maximum
A-5141-15T1
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sentencing exposure under the plea would be a forty-year term with parole
ineligibility of twenty years (40/20 plea offer). The prosecutor testified Lawhun
asked whether the State would accept a twenty-year flat sentence, but the
prosecutor declined the request. On April 30, 1992, defendant signed a trial
memorandum refusing the State's offer to plead guilty to the assault and
kidnapping charges "with no rec." On May 28, 1992, the trial judge asked
Lawhun in open court, "Will your client be able to reach a conclusion with
respect to the plea bargain by next Friday with the four, five and six indictments
still outstanding?" To which she responded, "I won't know that until I've had a
chance to speak with him." On June 9, 1992, the trial judge warned defendant
the following day was his last to accept the State's plea offer. The prosecutor
testified the trial judge discussed the plea with defendant and Lawhun testified
that the trial judge always reviewed pleas with defendants.
Defendant asserts Lawhun never communicated the 40/20 plea to him and
therefore she was constitutionally ineffective. As proof, defendant points to an
exchange of letters between he and Lawhun from 1992. On March 25, 1992,
defendant wrote to Lawhun requesting she secure "a plea offer of whatever
amount of time you deem appropriate and reasonable considering the
[indiscernible] of my case." Lawhun responded on April 2, 1992, and explained:
A-5141-15T1
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I have received your numerous letters concerning a plea
bargain in your case. At the present time the
prosecutor's offer remains the same. That is to say that
she is willing to let you plead guilty to the kidnapping
count and the aggravated assault count but will not
recommend a specific sentence to the court.
In effect, you are being offered nothing, because
the maximum time that you would be sentenced to if
you were to go to trial is similar to that which you could
receive if you pled guilty to these two counts.
Defendant wrote Lawhun back, saying:
Frankly, I'm confused because when you last spoke
with me over the telephone, during our 15 minute
conversation, you told me that I have a "No Rec Plea
Offer" that is at the discretion of the court. Now, you
are saying, according to your April 2, 1992 letter to me,
it is your opinion that my case will end up being placed
on the trial list. . . . Well, just do your best to get me a
plea offer.
The record does not contain Lawhun's responsive letter, if one was written.
Lawhun acknowledged she described the State's plea offer as equivalent
to "being offered nothing" because the sentencing exposure on the assault and
kidnapping charges was the same under the State's offer as if he went to trial.
When asked whether her letter was referring to defendant's full sentencing
exposure if found guilty at trial of all crimes, Lawhun disagreed and explained
her letter referred only to the sentencing exposure of assault and kidnapping
under the State's plea offer compared to defendant's exposure if found guilty of
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the same two crimes. The prosecutor agreed with this characterization because
the State offered defendant a plea to two of the several charges with no
sentencing recommendation, meaning defendant ran the risk of facing full
sentencing exposure on all crimes charged if found guilty at trial.
Several letters and pre-trial hearing transcripts from when the plea deal
was discussed are not included in the record. At some point after the evidentiary
hearing was granted but before the hearing, the State learned defendant had
written to Lawhun saying, "Unlike me, the State does not have the plea offer
hearing transcripts in my criminal case" and "Lucky for me, I saved your letters
to me. I will see you at my evidentiary hearing. Also, I kept my transcripts
too." The State filed an ex parte application with the PCR judge requesting
seizure and in-camera review of the documents defendant had in his jail cell.
The judge granted the application but prohibited defendant's PCR counsel from
informing defendant for fear he may destroy the documents. Defendant's cell
was searched, but neither the transcripts nor letters were found.
Following the evidentiary hearing, on May 12, 2016, the judge denied
defendant's PCR petition. The judge concluded the newspaper clipping,
Lawhun's April 2, 1992 letter, and the trial memorandum all demonstrated
defendant knew of and rejected the 40/20 plea offer. The judge found it "curious
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defendant retained and presented only this one letter from Ms. Lawhun, which
he attempts to argue to his advantage, when Ms. Lawhun wrote defendant
approximately 12 other letters." Moreover, the judge found it "inexplicable"
that defendant, "who terms himself a meticulous saver of documents," did not
have the April 30, 1992 pretrial transcript where the trial court presumably
reviewed the plea offer with defendant. The judge also found the newspaper
article was evidence demonstrating the 40/20 plea offer was made in open court
and refused to allow defendant to simultaneously argue the newspaper article
proves the offer was never communicated to him, while also showing the offer
was in fact made. Thus, the judge concluded "[t]here is simply no evidence that
the article could reflect anything other than what had occurred in open court on
that same date." Based on these findings, the judge concluded defendant could
not prove Strickland's2 prejudice prong, and, even if he could, there was credible
evidence indicating he would never have accepted the 40/20 plea offer in the
first instance.
The judge also ruled on December 28, 2015, that defendant's jury
tampering claim was procedurally barred. The judge found this claim to be
2
Strickland v. Washington, 466 U.S. 668 (1984).
A-5141-15T1
9
sufficiently identical to the claim defendant brought in his first PCR petition.
The appeal of both orders followed.
Defendant, through counsel, raises the following issues on appeal:
I. THE PCR COURT ERRED IN RULING THAT
HARRIS RECEIVED THE EFFECTIVE
ASSISTANCE OF COMPETENT COUNSEL IN
CONNECTION WITH THE STATE'S PLEA
OFFER TO HARRIS.
A. The Strickland-Cronic-Fritz Standard
B. Harris Received Ineffective Assistance of
Counsel in Connection with his Plea
Bargaining
C. Trial Counsel's Assistance was
Constitutionally Defective as It relates to
the State's 40/20 Plea Offer
II. THE PCR COURT ERRED IN FINDING THAT
HARRIS RECEIVED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN
CONNECTION WITH THE 40/20 PLEA
OFFER FROM THE STATE AND,
THEREFORE, THIS CASE SHOULD BE
REMANDED WITH DIRECTION TO HAVE
THE STATE REOFFER THE 40/20 PLEA
OFFER TO HARRIS AND HAVE THE TRIAL
COURT VACATE HARRIS' CONVICTION
AND RESENTENCE HARRIS PURSUANT TO
THE 40/20 PLEA OFFER.
III. THE PCR COURT SHOULD HAVE
CONDUCTED AN EVIDENTIARY HEARING
A-5141-15T1
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TO ADDRESS THE TAINTED JURY CLAIM
RAISED BY DEFENDANT.
IV. THIS CASE SHOULD BE REMANDED TO
THE PCR COURT WITH DIRECTION TO
VACATE HARRIS' CONVICTION OR TO
CONDUCT AN EVIDENTIARY HEARING
BEFORE A DIFFERENT JUDGE BECAUSE
THE PCR JUDGE WAS NOT IMPARTIAL
AND THUS, HARRIS DID NOT RECEIVE A
FAIR PCR HEARING (NOT RAISED BELOW).
Defendant, through a pro se brief, raises the following issues on appeal:
I. THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WHERE THE
RECORD BELOW UNEQUIVOCALLY
DEMONSTRATED THAT HE RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL,
AND COUNSEL'S FAILURE TO PROPERLY
AND ACCURATELY INFORM AND
COUNSEL HIM, WITH RESPECT TO THE
STATE'S PLEA OFFER, RESULTED IN A
REJECTION OF THAT OFFER, WHICH HE
SUBSEQUENTLY RECEIVED A SENTENCE
SIGNIFICANTLY GREATER THAN THAT
EMBODIED IN THE STATE'S PROPOSED
PLEA ORDER.
Generally, "[o]ur standard of 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). A PCR court's findings will be upheld if they
are supported by sufficient credible evidence in the record. Ibid. All legal
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conclusions are reviewed de novo. State v. Harris, 181 N.J. 391, 419 (2004).
We address defendant's arguments concerning the plea offer, the tainted juror
and the judge's bias. We reject all three.
To prevail under Strickland/Fritz, defendant must show: (1) his lawyer's
performance was deficient and (2) the deficient performance prejudiced him.
Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 52 (1987). The Sixth
Amendment has long guaranteed the right to effective plea counsel. See, e.g.,
Hill v. Lockhart, 474 U.S. 52, 56 (1985); State v. DiFrisco, 137 N.J. 434, 456
(1994).
More recently, the Supreme Court extended this right to contexts where,
as a result of attorney ineffectiveness, a defendant rejects a plea offer. Missouri
v. Frye, 566 U.S. 134, 138 (2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012).
Generally, plea counsel "has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to
the accused." Frye, 566 U.S. at 145; see State v. Powell, 294 N.J. Super. 557,
564 (App. Div. 1996) ("an attorney's conduct is incompetent when a plea offer
is never communicated by the attorney to the client"). In Frye, defense counsel's
performance was deficient because he allowed a plea offer to expire without
communicating it to his client. Frye, 566 U.S. at 145. In Lafler, the parties
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agreed counsel's performance was deficient because he erroneously told his
client he could not be convicted at trial. Lafler, 566 U.S. at 163.
To prove prejudice in the context of a plea rejection, defendant must show
that but for counsel's failure to communicate, there was a "reasonable
probability" he would have accepted its terms. Id. at 164. "Defendants must
also demonstrate a reasonable probability the plea would have been ente red
without the prosecution canceling it or the trial court refusing to accept it . . . ."
Frye, 566 U.S. at 147. "To establish prejudice in this instance, it is necessary to
show a reasonable probability that the end result of the criminal process would
have been more favorable by reason of a plea to a lesser charge or a sentence of
less prison time." Ibid.; see also Lafler, 566 U.S. at 168.
Here, the judge found defendant's lawyer communicated the 40/20 plea
offer to defendant. The judge's review of the April 2, 1992 letter, the newspaper
article, and the pretrial memorandum all indicated there was only one plea offer
on the table and defendant was aware of it. Even though counsel's letter did not
say "40/20" specifically, she described the State's offer as "similar" to what
defendant would face at trial on the kidnapping and aggravated assault charges.
It is evident counsel had the maximum exposure of forty years for kidnapping
and assault in mind when she wrote the letter. The pretrial memorandum and
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counsel's recollection at the evidentiary hearing as well as the newspaper article
support this conclusion.
Even if defendant was confused after counsel's explanation, the trial court
reviewed the plea with him on at least one occasion prior to trial when defendant
signed the pretrial memorandum. Despite the missing transcript, the trial judge
must have reviewed the 40/20 plea offer because the State only made one plea
offer to defendant.
Moreover, the PCR court found he would not have accepted the offer to
begin with. The record supports this conclusion. Both counsel and the
prosecutor testified defendant would only accept an offer of twenty-to-twenty-
five years flat. Defendant admitted as much in his letter to his first trial counsel.
Lawhun's testimony that she continued to ask the prosecutor to alter her offer to
no avail demonstrates defendant was never satisfied with the State's offer.
Although defendant received a greater sentence by going to trial than if he
accepted the State's offer, this is not a case like Lafler where the defendant
rejected a plea after receiving erroneous advice. Rather, defendant rejected the
State's offer when it did not conform to his expectations and went to trial aware
of the consequences. Accordingly, defendant did not meet either prong under
the Strickland/Fritz test regarding his plea.
A-5141-15T1
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Defendant also appeals the court's December 28, 2015 ruling that his jury
tampering claim was procedurally barred. In his pro se supplemental brief,
defendant revived his tainted jury claim, but this time defendant alleges the juror
in question was a dietician in the prison where he is housed, the two had a
conversation, and the juror discussed a phone call she received about defendant
prior to his trial. Notably, the only evidence defendant presented of this
conversation was defendant's certification and an appointment sheet stating he
met with the dietician. The judge found this claim sufficiently identical to the
claim defendant brought in his first PCR petition. The first PCR judge found
defendant "to be incredible" and he did "not believe his testimony," and we
affirmed the denial of defendant's claim. The PCR judge herein found
defendant's current jury taint claim both substantially similar to and equally
incredible as the claim in his first PCR petition because both claims involved
the same juror and the same alleged phone call. Therefore, his claim was
procedurally barred by Rule 3:22-5 because it was previously adjudicated upon
the merits.
Nevertheless, the judge addressed the jury tampering claim on the merits
and rejected it explaining juror interviews are not warranted when a defendant
fails to corroborate an allegation of juror misconduct. Here, defendant's self -
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serving certification was the only evidence presented of his conversation with
the juror. We discern no error in the judge's determination.
Finally, we reject defendant's argument the court was biased against him.
Defendant cites to the Code of Judicial Conduct to make his claim. However, it
is unclear whether defendant is arguing the judge was biased because she
presided over an ex parte hearing or because the search may have violated
defendant's due process rights. In any event, if the court's actions were in error,
they were not plain error.
Per Rule 2:10-2, if an error has not been brought to the trial court's
attention, we will not reverse based on such error unless the appellant shows
plain error. Plain error is error "clearly capable of producing an unjust result."
R. 2:10-2. In PCR, the question is whether the error denied a fair decision on
the merits. State v. Macon, 57 N.J. 325, 338 (1971).
The judge considered seizure of defendant's documents necessary to
preserve the integrity of the upcoming evidentiary hearing. After the evidentiary
hearing, the PCR judge amplified her reasoning, described the ways in which
she protected defendant's due process rights, and concluded she found probable
cause to sign a search warrant. The court considered this step necessary because
A-5141-15T1
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defendant "was attempting to obstruct justice in his trial." We do not endorse
the conclusion this was the only course of action.
However, ultimately, the only piece of evidence seized and then presented
at the evidentiary hearing was defendant's 1991 letter to his trial counsel (stating
he wanted a twenty-year plea), which defendant argued was in his favor. After
reviewing the evidentiary hearing transcript and the judge's PCR decision, we
discern no evident bias against defendant. We note, however, the better practice
would have been to direct the state to file a discovery motion rather than
authorizing the state to search an inmate's legal file. See State v. Marshall, 148
N.J. 89, 269 (1997) (noting even though the Court Rules governing PCR
petitions do not contain discovery provisions, "our cases have recognized that,
even in the absence of authorization in the form of a Court Rule or constitution al
mandate, New Jersey courts have 'the inherent power to order discovery when
justice so requires.'" (quoting State ex rel. W.C., 85 N.J. 218, 221 (1981))).
We have carefully reviewed defendant's remaining arguments and have
determined they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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