NOT FOR PUBLICATION WITHOUT THE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-5227-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRENCE HOUSER,
Defendant-Appellant.
Submitted September 6, 2017 – Decided October 3, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 11-06-1159.
Dmitriy Shakhnevich, attorney for appellant.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant appeals a Law Division order denying post-
conviction relief (PCR). We affirm.
On June 26, 2012, defendant entered a guilty plea to second-
degree aggravated assault, N.J.S.A. 2C:12-1B(1). The second count
of the indictment, charging him with third-degree endangering a
helpless person, N.J.S.A. 2C:12-1.2, was dismissed at sentencing.
Defendant decided to plead guilty after being informed that
his co-defendant had pled guilty, and agreed to testify at trial.
The court rejected his factual basis on his first attempt, however,
because defendant's statements, which included describing kicking
and "stomping" the victim while he lay prostate on the ground,
raised the issue of self-defense. Defendant said he believed the
victim was carrying a handgun.
After rejecting the plea, the court proceeded to address
defendant's Wade1 application in anticipation of trial. After
hearing the arguments and considering the evidence, the judge
found the photo arrays shown to the witnesses were not
impermissibly suggestive even though the background color of
defendant's photograph was lighter than the background color of
the other photographs. The judge observed that it was a "minimal"
difference. Accordingly, the judge denied the motion.
At that point, the court was advised by defendant's attorney
that his client wished to address the judge. The judge responded:
[t]his is the way it is; all right? I'm not
here to get you to plead guilty. That's not
what I'm here for. I'm not here to accept a
guilty plea if you have a valid claim of self-
1
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
2 A-5227-15T3
defense. That's not what I'm here for. That's
not what I signed up for, and that's what I'm
not interested in. All right?
So we're prepared to go to trial. If you
want your right to a jury trial, I'll give it
to you, and . . . I'll try the case as fair
as I can. That's . . . what I'll do.
The judge then asked defendant if he wanted to again attempt
to establish a factual basis for the guilty plea, to which he
responded "[y]es." The judge next asked whether it was "a decision
you're making of your own free will[.]" The defendant responded,
"[y]es."
This time, defendant acknowledged that he continued to punch
and kick the victim even after he lay defenseless on the ground.
As defendant put it, he "went a little overboard." Defendant
admitted that he could have walked away and acknowledged that he
actually did so. He returned a few seconds later, once more
punching and kicking the victim as he lay on the ground. Defendant
agreed that the assault continued even after the victim was clearly
no longer a threat. This time, the judge found defendant's sworn
statements satisfied the statutory elements, and that the
statements did not raise the issue of self-defense.
Defendant was given a sentencing date of September 14, 2012,
and was warned regarding his obligation to return to court. See
State v. Subin, 222 N.J. Super. 227, 237-40 (App. Div. 1988)
3 A-5227-15T3
certif. denied, 111 N.J. 580 (1988). Specifically, the judge told
defendant that if he failed to appear at sentencing, he could be
sentenced to the maximum for a second-degree offense, a ten-year
custodial term, instead of the seven years per the plea agreement.
Defendant failed to appear. His attorney represented to the
court that defendant was in North Carolina, where his daughter was
undergoing surgery. Counsel further stated that he asked defendant
to document the claim, and that defendant had agreed to do so.
The State nonetheless requested a bench warrant, indicating that
if provided appropriate documentation, it would request rescission
of the bench warrant.2
Defendant was apprehended in Georgia on the bench warrant.
On April 28, 2014, new counsel filed an application to withdraw
defendant's guilty plea on the grounds that the factual basis was
inadequate as it raised the issue of self-defense. The trial
judge reminded counsel of the fact that the video from the liquor
2
In rendering his PCR decision, the judge said that the medical
documentation defendant provided did not demonstrate "an immediate
medical emergency that would preclude the defendant from being
present at trial -- or at sentencing." The judge also indicated
he had received a letter from defendant after his arrest on the
bench warrant. He wrote that he was afraid to go to prison and
"made a mistake" by failing to appear at sentencing. In that
letter, defendant claimed that the birth of his third child was
the factor that caused him to make the decision not to come to
court because he was "scared senseless." Defendant further stated
he wanted to withdraw his guilty plea and be assigned new counsel.
4 A-5227-15T3
store in which the incident occurred depicted defendant and his
co-defendant pummeling and stomping the victim as he lay on the
ground. Nonetheless, counsel argued that defendant felt he was
being threatened by the victim; that he was only trying to defend
himself; and that at worst, defendant was guilty of a simple
assault.
In opposition to the motion, the prosecutor played the video
in court. After watching it, the judge observed that the victim
was leaving the liquor store when defendant walked quickly in
front of him and struck him in the face, and that he continued to
attack. After that initial blow, the victim lay on the ground
motionless while defendant repeatedly kicked him in the head.
Referring to State v. Slater, 198 N.J. 145 (2009), the judge
found that defendant's claim of innocence had no merit. The video
and defendant's sworn statements when the guilty plea was entered,
contradicted defendant's claim that the victim was threatening
patrons in the liquor store. The judge observed that had defendant
been genuinely concerned that the victim was armed, he would not
have turned his back on him. Furthermore, the video showed that
while the victim lay motionless on the sidewalk in front of the
store, defendant went back into the store to retrieve his gloves
and struck the victim again as he walked by him. Defendant's
conduct was intentional and not engaged in self-defense. The
5 A-5227-15T3
judge stated that defendant "would have an uphill battle in getting
[self-defense] submitted to the jury based upon that evidence."
The judge who decided the PCR motion, who was also the judge
who accepted defendant's plea and sentenced him, remembered
defendant stating that his guilty plea was being made voluntarily.
During the sentencing proceeding that followed denial of the
motion to withdraw the guilty plea, defendant told the judge that
he did not return to court because his mother, who also spoke at
the sentencing and corroborated this narrative, told him she had
checked his case on a website and that it showed his case had been
dismissed. Defendant also said that his trial attorney compelled
him to enter the guilty plea, and that he was not provided a full
packet of discovery although he had seen the video. He denied
that the victim suffered severe injuries because of anything he
did, insisting that the victim was put into a drug-induced coma
only to treat minor scrapes and injuries.
When he sentenced defendant, the judge detailed the victim's
injuries – which included bleeding to the brain and multiple facial
fractures, including a fracture of the cribrifon plate, which
caused air to enter into the victim's brain cavity. He was in a
medically induced coma on a ventilator for a period of time and
was diagnosed with traumatic brain injury resulting exclusively
from the assault. Defendant interrupted the judge, insisting that
6 A-5227-15T3
the victim's brain injury was not referred to in the discovery he
had been given.
At sentencing, the prosecutor recalled waiting for defendant
to appear on September 14, 2012, the original sentencing date,
with defendant's first attorney. As they waited, defense counsel
told the prosecutor that his client had called and said that he
was not coming. After the call, counsel put on the record
defendant's first reason for his non-appearance, his daughter's
alleged surgery. The prosecutor thus argued that it was clear
defendant simply decided to take his chances as a fugitive. He
urged the court to find at least aggravating factors two, three,
six, and nine. See N.J.S.A. 2C:44-1a(2), (3), (6), (9).
Defendant, in addition to assaulting a helpless victim, had a
record of arrests dating back to the year 2000 as a juvenile. The
assault in this case was defendant's fourth indictable conviction,
he had a history of violating probation, and four disorderly
persons convictions.
The judge imposed the ten-year prison sentence as permitted
by the terms of the plea agreement. He found aggravating factors
two, three, six, and nine and no mitigating factors. See N.J.S.A.
2A:44-1b. Accordingly, the judge sentenced defendant to ten years
imprisonment, subject to eighty-five percent parole ineligibility
pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
7 A-5227-15T3
Defendant appealed his sentence by way of the excessive
sentence oral argument calendar. See R. 2:9-11. He contended
that he should have received the initial custodial term agreed to
in the plea agreement, or seven as opposed to ten years. We did
not agree because the trial judge gave detailed reasons for his
decisions, the record supported the aggravating factors, and the
sentence was imposed in accordance with the plea agreement. An
order denying relief was entered April 15, 2015. State v. Houser,
App. Div., A-0331-14 (April 15, 2015). Defendant's petition for
certification was denied on October 9, 2015. State v. Houser, 223
N.J. 283 (2015).
In his pro se certification submitted in support of his
original petition for PCR, defendant alleged that his attorney
failed to properly investigate, only "representing defendant one
time [which] was the day he plead guilty[;]" failed to provide him
with discovery; failed to properly communicate the consequences
were he to take the matter to trial; and failed to explain to the
court that the reason defendant failed to appear on the date of
trial was that his daughter was in the hospital awaiting surgery.
He further certified that his trial attorney "cajoled" him into
pleading guilty.
When he denied defendant's PCR application, the judge began
by reiterating his recollection of the liquor store video that
8 A-5227-15T3
captured the incident and the grave injuries suffered by the
victim. The judge also recalled in detail the process that
ultimately led to defendant's sentence. He concluded that Rule
3:22-4(a) barred relief based on alleged shortcomings in the
factual basis for the plea, as the issue was suitable for direct
appeal. No evidentiary hearing was warranted. See R. 3:22-10.
Furthermore, defendant had entirely failed to show any prejudice
resulting from counsel's representation. Nothing in the record
demonstrated that defendant would have proceeded to trial but for
ineffective assistance of counsel.
Defendant raises the following points for our consideration:
POINT ONE
POST-CONVICTION RELIEF IS THE PROPER FORUM TO
REVIEW CONSTITUTIONAL ISSUES SURROUNDING THE
POTENTIAL INEFFECTIVE ASSISTANCE OF COUNSEL
CLAIMS, AS THOSE CLAIMS GENERALLY COULD NOT
HAVE BEEN RAISED IN PRIO10R PROCEEDINGS.
POINT TWO
THE LOWER COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF BECAUSE
DEFENDANT'S COUNSEL WAS INEFFECTIVE IN
REPRESENTING DEFENDANT IN COURT ONLY ONCE, ON
THE DAY OF THE GUILTY PLEA, AND CONFERRING
WITH DEFENDANT ONLY ONCE PRIOR TO THE
ACCEPTANCE OF SAID PLEA.
POINT THREE
THE LOWER COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF BECAUSE
DEFENDANT'S COUNSEL WAS INEFFECTIVE IN FAILING
9 A-5227-15T3
TO PERFORM RESEARCH, INVESTIGATING AND
INTERVIEWING WITNESSES, DISCUSSING FACTUAL
DEFENSES WITH DEFENDANT, PROPERLY REVIEWING
DISCOVERY AND MAKING INSUFFICIENT ARGUMENTS AT
SENTENCING.
POINT FOUR
THE LOWER COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF BECAUSE
DEFENDANT'S COUNSEL PRESSURED DEFENDANT TO
PROCLAIM GUILT IN CONTRADICTION OF DEFENDANT'S
CLAIMS OF INNOCENCE AND INTENTIONALLY MISLED
DEFENDANT.
POINT FIVE
THE LOWER COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF BECAUSE
THE FACTUAL BASIS SUPPORTING DEFENDANT'S PLEA
WAS INADEQUATE AND INSUFFICIENT TO ALLOW
DEFENDANT TO PLEAD GUILTY IN THIS CASE.
POINT SIX
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED
IN DEFENDANT'S PRO SE PETITION FOR POST-
CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF
IN SUPPORT OF POST-CONVICTION RELIEF.
In order to establish a prima facie claim of ineffective
assistance of counsel at trial, a defendant must, pursuant to the
familiar standard, demonstrate that counsel made errors "so
serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2nd 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). An
attorney's representation is deficient when it "[falls] below an
10 A-5227-15T3
objective standard of reasonableness." Strickland, supra, 466
U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2nd at 693; Fritz,
supra, 105 N.J. at 58.
Additionally, a defendant "must show that the deficient
performance prejudiced the defense." Strickland, supra, 466 U.S.
at 687, 104 S. Ct. at 2064, 80 L. Ed. 2nd at 693; Fritz, supra,
105 N.J. at 52. The prejudice standard is met if there is "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2nd at 698; Fritz, supra, 105 N.J. at 52. A reasonable probability
is one that undermines confidence in the outcome. Strickland,
supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2nd at 698;
Fritz, supra, 105 N.J. at 52.
The standard is essentially the same with regard to the entry
of guilty pleas. A defendant must establish first that the
representation was deficient. Secondly, a defendant must
demonstrate that, but for counsel's errors, defendant would not
have entered into a plea agreement with the State and would have
proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct.
366, 370, 88 L. Ed. 203, 210 (1985). Prejudice is not presumed
except in cases exemplified by egregious shortcomings in the
11 A-5227-15T3
professional performance of counsel. Fritz, supra, 105 N.J. at
61.
In this case, defendant's substantive points two through
five, are based on uncorroborated bare assertions that conflict
with the record made available to us. He alleges, for example,
that his attorney only met with him on the day that the plea was
entered. In light of the fact that the matter was listed for
trial the day the Wade motion was heard, that claim lacks
credibility. Among other things, Rule 3:9-1(f) requires that
before a case is given a trial date, a pre-trial conference must
be conducted on the record. At that time, a defendant is asked
if he or she understands "the salient facts and anticipated
proofs." Ibid. That conference would only have been conducted
in defendant's presence.
Furthermore, it was defendant who initiated the entry of his
guilty plea, not his attorney. See State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199
(1999) (stating "in order to establish a prima facie claim, a
petitioner must do more than make bald assertions that he was
denied ineffective assistance of counsel.")
Defendant's argument regarding the allegedly insufficient
factual basis, with which we do not agree on the merits, is barred
12 A-5227-15T3
by Rule 3:22-4(a). This argument should have been made on direct
appeal and was not.
Finally, defendant under the authority of State v. Rue, 175
N.J. 1 (2002), urges us to consider all the arguments raised by
PCR counsel and defendant pro se not included in the points we
have addressed. None warrant discussion on the merits. See R.
2:11-3(e)(2).
Ultimately, this was an extended term eligible defendant,
whose unprovoked attack was captured on film, and resulted in a
serious brain injury inflicted upon a total stranger. See N.J.S.A.
2C:43-7a(3) and 2C:44-3a. Once having negotiated a favorable
guilty plea, defendant then failed to appear for sentencing and
gave at least three different justifications for his non-
appearance, none of which were supported by the record. It appears
to us that he was represented by competent counsel who did a
creditable job in negotiating a favorable plea in light of the
State's overwhelming proofs. The representation was not
deficient. Since counsel was not ineffective, defendant's
decision to waive his right to a trial and enter a guilty plea was
not a result of counsel's errors.
Affirmed.
13 A-5227-15T3
STATE OF NEW JERSEY VS. TERRENCE HOUSERÂ (11-06-1159, ESSEX COUNTY AND STATEWIDE)
Combined Opinion