STATE OF NEW JERSEY VS. THOMAS T. HAWKINSÂ (11-07-0721, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0545-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS T. HAWKINS,
Defendant-Appellant.
____________________________________
Submitted October 12, 2017 – Decided October 30, 2017
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 11-07-0721.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Scott Gershman,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Thomas Hawkins appeals from the July 21, 2015 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
On September 17, 2010, defendant robbed a dry cleaning
establishment, shooting and killing the owner in the process.
Defendant gave a videotaped confession to the police during which
he admitted shooting the victim.
A Mercer County grand jury indicted defendant for first-
degree murder for the purpose of escaping detection or while
committing a robbery, N.J.S.A. 2C:11-3(a)(1) or –(a)(2) (count
one); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and -(a)(2)
(count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3)
(count three); first degree robbery, N.J.S.A. 2C:15-1 (count
four); second-degree possession of a weapon for an unlawful
purpose, 2C:39-4(a) (count five); third-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b) (count six); and hindering
apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4) (count seven).
On June 5, 2012, defendant entered into a plea agreement,
pleading guilty to felony murder (count three), in exchange for a
sentencing recommendation of a thirty-year prison term subject to
a thirty-year period of parole ineligibility pursuant to N.J.S.A.
2C:11-3(b)(1), followed by a five-year period of parole
supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-
7-2(c), and the dismissal of the remaining counts.
The plea forms initialed and signed by defendant included the
standard supplemental plea form for NERA cases, which asked
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defendant: "Do you understand that because you have pled guilty
to these charges the court must impose a 5 year term of parole
supervision and that term will begin as soon as you complete the
sentence of incarceration?" To that question defendant answered,
"Yes."
During the plea hearing, the court questioned defendant about
the supplemental NERA plea form. Defendant testified that he
reviewed the form with his attorney, understood the questions as
his attorney explained them to him, underlined his answers on the
form, and signed the form. He further testified that he understood
there would be a five-year period of parole supervision after he
was released from incarceration.
Defendant established an adequate factual basis for his plea.
He admitted that on the morning of September 17, 2010, he was
armed with a loaded .38 caliber handgun and entered James' Dry
Cleaning intending to rob it. In the process of carrying out the
robbery, he admitted to firing a shot that caused the death of the
owner, constituting felony murder.
Defendant denied being under the influence of any substance,
either legal or illegal, that would interfere with his ability to
make a decision the day of the plea hearing. He also denied having
any questions that he would like to ask the court, the prosecutor,
or his attorney about the terms of the agreement or the proceeding
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being conducted. Defendant testified that he was entering into
the plea agreement freely, voluntarily, and with full knowledge
and understanding of the consequences of being convicted of felony
murder.
The trial court accepted the defendant's plea, finding that
defendant was "competent" and that the plea was being made "freely,
knowingly, intelligently, and voluntarily, and that there's a
sufficient factual basis for acceptance of the plea." Defendant
did not move to withdraw his guilty plea either before or after
sentencing.
On August 15, 2012, defendant was sentenced in accordance
with the terms of the plea agreement and ordered to pay restitution
of $3426 and appropriate fines, penalties, and assessments. The
remaining counts of the indictment were dismissed.
On June 10, 2013, defendant filed a notice of appeal, arguing
that the restitution award was excessive. The appeal was heard
before an Excessive Sentencing Oral Argument (ESOA) panel pursuant
to Rule 2:9-11. Defendant conceded at oral argument that he had
received the minimum sentence for felony murder—a thirty-year
prison term subject to a thirty-year period of parole
ineligibility. Defendant's sole argument was based on the
sentencing court's failure to conduct a hearing regarding his
ability to pay $3426 in restitution. The ESOA panel entered a
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November 20, 2013 order affirming the sentence imposed, holding
that "the disposition is not manifestly excessive or unduly
punitive and does not constitute an abuse of discretion."
On July 28, 2014, defendant filed a timely pro se PCR petition
that was supplemented with a brief by appointed PCR counsel.
Through counsel, defendant raised the following issues:
POINT I
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND HIS RIGHT
TO A FAIR TRIAL AND RECEIVED AN ILLEGAL
SENTENCE SINCE TRIAL COUNSEL AND THE COURT
DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL
RIGHTS.
POINT II
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, DUE PROCESS OF THE LAW AND OF HIS
RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL
FAILED TO ARGUE THAT THE DEFENDANT COULD NOT
ENTER INTO THE PLEA AGREEMENT KNOWINGLY.
In a supplemental letter brief, PCR counsel raised the
following additional issue:
A term of incarceration of thirty years with
a thirty year parole disqualifier was imposed
for the conviction for count three, Felony
Murder. Such sentence violates the Fifth
Amendment and Double Jeopardy Clause of the
United States Constitution as the same was not
imposed pursuant to the No Early Release Act.
Moreover, a sentence imposed pursuant to the
Graves Act was illegal as the defendant was
sentenced pursuant to the No Early Release
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Act. Notably, N.J.S.A. 2C:1-9(a) prevents a
greater sentence when a lesser one is imposed.
In his supporting brief, PCR counsel argued that trial counsel
failed to inform defendant he would be subject to a five-year term
of parole supervision upon his release, failed to inform him the
plea he entered into violated his rights and the Double Jeopardy
Clause of the United States Constitution, and failed to inform him
he could file a direct appeal addressing those issues as well as
his inability to pay restitution. He further argued that trial
counsel failed to make relevant arguments at sentencing regarding
mitigating factors and the double counting of aggravating factors.
PCR counsel also asserted trial counsel failed to argue for a
lesser sentence pursuant to State v. Warren, 115 N.J. 433 (1989).
More specifically, PCR counsel's brief argued that trial
counsel failed to discuss defendant's mental health history,
social history, disadvantaged childhood, and addiction problems
during the sentencing hearing. He further noted that trial counsel
failed to argue that defendant was a first time youthful offender
and had received his G.E.D.
With respect to his argument that he had not entered his
guilty plea knowingly, defendant argued:
[D]ue to him being unable to take his
medications prior to entering into the plea
agreement, he was unable to function correctly
and rationally participate in the plea
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hearing. He was unable to object in any
substantial way, comprehend his position, and
consult with counsel intelligently. Trial
counsel was aware that he was unable to
function and instructed him to perjure himself
by denying as much.
Defendant's claim that he was unable to take his prescribed
medications on the date of the plea hearing was not corroborated
in any way. Defendant did not provide any affidavits,
certifications, expert reports, medical records, or other exhibits
verifying any relevant psychiatric or medical diagnosis, or any
medications he had been prescribed. Defendant also failed to
provide any documents verifying the impact of the failure to take
those medications on his ability to make a knowing, intelligent,
and voluntary plea. Defendant's presentation during the PCR
hearing was similarly devoid of any such information.
The PCR was heard by Judge Pedro J. Jimenez, Jr. During the
PCR hearing, defendant withdrew his claims of ineffective
assistance of counsel, and stated that he only sought to pursue
his claim that his sentence was illegal. In essence, defendant's
argument was twofold: (1) trial counsel failed to advise him that
he would be subject to a five-year period of parole supervision
if convicted of felony murder; and (2) imposition of the five-year
period of parole supervision violated his constitutional rights
and was illegal.
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On July 21, 2015, Judge Jimenez issued an order and
comprehensive seventeen-page letter opinion denying defendant's
PCR petition without conducting an evidentiary hearing. In his
opinion, Judge Jimenez addressed the merits of each of defendant's
arguments, including those he had voluntarily withdrawn.
In his present appeal, defendant raises the following issue:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS THIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
We affirm substantially for the reasons stated by Judge
Jimenez in his thorough and well-reasoned written decision. We
add only the following comments.
PCR petitioners are not automatically entitled to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170
(App. Div.), certif. denied, 162 N.J. 199 (1999). Rather:
A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
[R. 3:22-10(b).]
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"A court shall not grant an evidentiary hearing . . . if the
defendant's allegations are too vague, conclusionary or
speculative[.]" R. 3:22-10(e)(2); see State v. Marshall, 148 N.J.
89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.
2d 88 (1997). "Rather, defendant must allege specific facts and
evidence supporting his allegations." State v. Porter, 216 N.J.
343, 355 (2013). As we explained in Cummings, "in order to
establish a prima facie claim, a petitioner must do more than make
bald assertions. . . ." Cummings, supra, 321 N.J. Super. at 170.
He must allege facts sufficient to demonstrate his claims. Ibid.
As noted by Judge Jimenez, defendant did not
provide any actual evidence of the fact that
he was prescribed medication at the time of
the plea, what type of medication he was
prescribed, what effect the medication had on
petitioner or that he was instructed by his
attorney to perjure himself and say that he
understood the proceedings without his
medication. As noted by the State, if the
[defendant] was prescribed legally to
medication to aid in his comprehension while
incarcerated at the Mercer County Correctional
Center, there would be records documenting
that he was prescribed medication. The
[defendant] has provided no such records.
Defendant has not provided any evidence of his diagnosis, the
medication he was prescribed, or that his condition would affect
his cognitive ability if he did not receive his prescribed
medication. His unsupported allegations failed to establish a
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prima facie case. Absent such evidence, defendant cannot prevail
on the merits.
We review a judge's decision to deny a PCR petition without
an evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992). We discern no such abuse of discretion
by the PCR court. Judge Jimenez correctly concluded that defendant
did not establish a prima facie case and was not entitled to an
evidentiary hearing.
The remaining issues raised by defendant lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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