STATE OF NEW JERSEY VS. DONALD J. EBERT (13-08-0917, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5662-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD J. EBERT a/k/a
DONALD JOSEPH EBERT
and DONNY DON,
Defendant-Appellant.
___________________________
Submitted October 14, 2020 – Decided December 11, 2020
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 13-08-0917.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven E. Braun, Designated Counsel, on the
brief).
Robert J. Carroll, Acting Morris County Prosecutor,
attorney for respondent (Paula Jordao, Special Deputy
Attorney General/Acting Assistant Prosecutor, on the
brief).
PER CURIAM
Sentenced to an aggregate seven-year prison term with three years of
parole ineligibility after pleading guilty to third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(2), and second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b),1 defendant Donald J. Ebert appeals from the order denying
his post-conviction relief (PCR) petition, arguing he is entitled to an evidentiary
hearing because:
POINT I
TRIAL DEFENSE COUNSEL WAS INEFFECTIVE
BY REFUSING TO REPRESENT DEFENDANT AT
TRIAL, THEREBY DEPRIVING DEFENDANT OF
HIS RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I,
SECTION 10 OF THE NEW JERSEY
CONSTITUTION.
POINT II
SENTENCING COUNSEL WAS INEFFECTIVE FOR
FAILING TO ARGUE REMORSE AS A
MITIGATING FACTOR.
1
We affirmed defendant's sentence on our excessive sentence oral argument
calendar, remanding only for the correction of transposed sentences in the
judgment of conviction. Our Supreme Court denied defendant's petition for
certification. See State v. Ebert, 234 N.J. 16, 16 (2018).
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2
Reviewing the factual inferences drawn by the PCR judge from the record and
its legal conclusions de novo because the court did not conduct an evidentiary
hearing, see State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), and
determining defendant did not present a prima facie case of ineffective
assistance of counsel, we affirm.
An evidentiary hearing should be held only if a defendant presents "a
prima facie claim in support of [PCR]." State v. Preciose, 129 N.J. 451, 462
(1992); see also R. 3:22-10(b). In order to establish a prima facie case, "a
defendant must demonstrate the reasonable likelihood of succeeding unde r the
test set forth in Strickland [v. Washington, 466 U.S. 668 (1984).]"2 Preciose,
129 N.J. at 463.
Merely raising a claim for PCR without more does not entitle a defendant
to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). But that is what defendant did in contending his trial counsel was
2
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the two-pronged test formulated in Strickland v. Washington, 466
U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment," then by proving he suffered prejudice due to counsel's deficient
performance, Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 52.
Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome. Fritz, 105 N.J. at 58.
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3
ineffective for refusing to represent him at trial unless he was paid $25,000 3 in
addition to the retainer in like amount already tendered, leaving defendant "with
little choice but to accept the plea because of counsel's financial demands." The
record reveals defendant negotiated and freely accepted the plea offer even after
the plea judge advised he need not accept it.
When defendant appeared on October 16, 2015, the case had not yet been
placed on the trial list even though defendant had been indicted in August 2013,
for: first-degree attempted murder, N.J.S.A. 2C:5-1, 11-3(a)(1) (count one);
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-
degree aggravated assault, N.J.S.A. 2C:12-(1)(b)(2) (count three); fourth-degree
aggravated assault with a firearm, N.J.S.A. 2C:12-(1)(b)(4) (count four);
second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-
6(a) (count five); and second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b) (count six). Defendant had countered the State's initial six-year,
State-prison plea offer, subject to eighty-five-percent parole ineligibility under
the No Early Release Act, N.J.S.A. 2C:43-7.2, if defendant pleaded guilty to
3
Defendant also claims trial counsel told him "he would need another $50,000
to go to trial." We cannot reconcile this disparity because the record citations
provided in defendant's merits brief correspond to the notice of appeal which
does not support this or his other factual contentions about trial counsel's actions
relative to this PCR.
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first-degree attempted murder, with a five-year prison term with three years of
parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6. The State rejected
the counteroffer. Trial counsel requested additional time before the case was
placed on the trial calendar because he wanted to propose a seven-year term with
three years of parole ineligibility to the State, but defendant had yet to authorize
that counteroffer, as counsel and defendant "reached . . . an impasse" on that
issue.
The plea judge briefly reviewed the facts of the case and defendant's
sentencing exposure on the most serious charges, advising defendant that his
counsel could not extend the counteroffer without his consent, but making clear
he was "not telling [defendant he had] to do that or not do that at all." The judge
then told defendant to discuss the matter with trial counsel and that he would
"hold off on the pretrial memorandum" necessary to place the case on the trial
calendar. See R. 3:9-1(f). The judge repeated that he wasn't telling defendant
he had "to do that," and if defendant told him he wasn't authorizing plea counsel
"to do anything like that" and wasn't "interested in that," he would indicate
defendant had rejected the State's offer and place the case on the trial list for
December 14.
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Defendant told the plea judge he would like to discuss the counteroffer
with counsel. The plea judge granted that request, advising defendant he could
be found guilty or not guilty at trial and that he faced a lengthy mandatory
sentence if found guilty. The judge added: "If you feel that you are innocent
and you want a trial, then you should have a trial." Defendant returned and
testified under oath that he authorized trial counsel to extend the counteroffer.
It took about one and three-quarters hours for the assistant prosecutor to
obtain approval of the counteroffered plea agreement. When the parties returned
to court later that afternoon, the judge, with completed plea forms in hand, asked
defendant if he wanted to resolve his case by way of plea; defendant answered:
"Correct. Yes."
During the plea colloquy, defendant admitted trial counsel had explained:
the charges to which he was pleading; "the possibility of going to trial on all the
original charges"; the potential exposure on each of those charges; "the potential
that perhaps you would be successful at trial"; and that counsel reviewed all
discovery "that the State . . . might be using against [him] at trial." Defendant
also swore he understood by pleading guilty he was giving up his right to a jury
trial. As the PCR judge found, defendant answered "[y]es" to the question in
the plea form that asked if he understood "that by pleading guilty [he gave] up
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6
certain rights" including "[t]he right to a jury trial in which the State must prove
[him] guilty beyond a reasonable doubt." Defendant also acknowledged he and
trial counsel had spent "hours on this case, if not days." And defendant thrice
said he was satisfied with trial counsel's services, the last time in response to the
plea judge's offer:
So, what I'm trying to say is, if you do not wish to enter
a guilty plea today, or if you think you need more time,
tell me now and I will give you that time, or I will stop
the plea and let you walk out of here and set a trial date.
"[I]n order to establish a prima facie claim, a petitioner must do more than
make bald assertions that he was denied the effective assistance of counsel."
Cummings, 321 N.J. Super. at 170. Defendant's bald assertions about counsel's
ineffectiveness, belied by the record, do not establish a prima facie claim.
"Defendant may not create a genuine issue of fact, warranting an evidentiary
hearing, by contradicting his prior statements without explanation." Blake, 444
N.J. Super. at 299. And, an evidentiary hearing is not to be used to explore PCR
claims. See State v. Marshall, 148 N.J. 89, 157-58 (1997).
At no time during the extensive plea colloquy, despite numerous
opportunities extended by the plea judge, did defendant voice any concern about
forgoing his right to trial because counsel refused to represent him. Even after
defendant had obtained new counsel, after the plea and before sentencing, he did
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7
not inform the sentencing judge of that issue and proceeded to sentencing
without objection or filing a motion to withdraw his plea. 4 His unsupported
claims do not establish a prima facie case.
Nor did those unsupported claims meet the second Strickland-Fritz prong.
Defendant has not proffered a defense to the charges or strategy that would have
succeeded at trial. Nor has he demonstrated "that there is a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." See Hill v. Lockhart, 474 U.S. 52, 59
(1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994). The victim said
defendant had brandished a handgun during a domestic argument in a car, during
which the victim was injured. Defendant never disputed that he had an
unregistered handgun in the car for which he did not have a permit. The
4
The PCR judge also found the retainer agreement executed by defendant and
trial counsel provided "[t]he legal fee for handling these matters is a fixed fee
of $50,000[.] The scope of this fee is post-indictment representation up until
trial." Although we do not question the PCR judge's finding that the retainer
agreement was "clear that if the matter proceeded to trial, additional funds would
be necessary" and that defendant sent a letter to the court expressing
dissatisfaction with his plea counsel in which he said he was able to pay only
$25,000 of the required retainer, the retainer is not included in the appellate
record. We are, therefore, unable to conduct a de novo review of that document.
But we see, as the PCR judge found, neither at the plea hearing nor sentencing
hearing did "[d]efendant contest the [r]etainer [a]greement, indicate that he
would like to proceed to trial or indicate that finances were preventing him from
proceeding to trial."
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aggregate sentence was actually the sentence imposed on the unlawful
possession of a handgun count. The other indicted charges, including the
attempted murder count, were dismissed pursuant to the plea agreement.
We determine defendant's argument that counsel was ineffective by
failing to argue defendant's remorse as a mitigating factor is without sufficient
merit to warrant discussion in this opinion. R. 2:11-2(e)(2). We add these brief
remarks.
After defendant expressed his remorse to the sentencing judge no fewer
than five times during his allocution, not only did sentencing counsel highlight
the letter defendant wrote to the sentencing judge in which defendant said he
was "extremely remorseful for his actions," counsel told the judge: "Your honor,
I think . . . my client summed it up. He's very remorseful." Thus, defendant
failed to show that sentencing counsel "made errors so serious that counsel was
not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" so as
to satisfy Strickland-Fritz's first prong. See Strickland, 466 U.S. at 687; see also
Fritz, 105 N.J. at 52.
Furthermore, defendant failed to show how counsel's error—which we do
not perceive—resulted in a different sentence. The sentencing judge reviewed
defendant's actions before, during and after the crimes. The judge discerned
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9
defendant's "real problem is his emotions. He gets so emotional that if you
couple that with substance abuse, . . . having some control issues clearly, he
could have a propensity to lose it. And that is exactly what happened" when he
committed the aggravated assault on his former girlfriend with a gun, left her at
the entrance of the hospital emergency room and kept a police emergency
response unit at bay for hours while a hostage negotiator tried to secure his
surrender. Although the sentencing judge noted defendant, since the charges
were levied, had "[n]o violations of the restraining order, [had undergone] drug
and alcohol treatment, [had gone] AA meetings[] [and had seen] psychiatrists
and psychologists to help him deal with these issues," he found defendant still
could not control himself at times during court proceedings and had "a long way
to go" to address the problems that had precipitated his crimes.
Even if defendant's remorse was not advanced as a mitigating factor,
defendant's apologies would have had no impact on the midpoint sentence the
judge imposed after his careful consideration of the aggravating and mitigating
factors, finding aggravating factors nine and fifteen, because defendant had
committed an act of domestic violence and needed to be deterred from
committing such acts in the future, and mitigating factors seven and nine,
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because defendant had no prior criminal history and was unlikely to commit an
act of this nature in the future. See N.J.S.A. 2C:44-1(f)(1)(c).
Affirmed.
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