STATE OF NEW JERSEY v. TYRONE ARTHUR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1863-06T41863-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE ARTHUR,

Defendant-Appellant.

_________________________________________________

 

Submitted January 9, 2008 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

01-04-1195.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Thomas Menchin,

Designated Counsel, on the brief).

Joshua M. Ottenberg, Acting Camden County

Prosecutor, attorney for respondent (Robin

A. Hamett, Acting Assistant Prosecutor, of

counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following jury selection and after his girlfriend-victim had testified against him in a pre-trial hearing, defendant Tyrone Arthur pled guilty, without a sentence recommendation, to charges of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), arising from two separate incidents: in the first, occurring on or about September 17, 2000, defendant punched his girlfriend during a fight, breaking several of her ribs; in the second, occurring on October 20, 2000 during another fight, he bit her nose and eyes, breaking her nose and causing her eyes to swell shut, he repeatedly stabbed her in the arm with a penknife and, while attempting to stab her in the head, he cut her left ear all the while threatening her with death. At sentencing, the judge denied defendant's motion to retract his guilty plea as well as the State's motion for an extended term and sentenced defendant to nineteen years in custody, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also given a consecutive four-year sentence for a parole violation arising from the commission of the crimes to which he had pled. Upon appeal, we affirmed both defendant's conviction and sentence. State v. Arthur, No. A-4211-01T4 (App. Div. March 10, 2004). Certification was denied. State v. Arthur, 180 N.J. 453 (2004). In a subsequent PCR petition, defendant argued that he had been offered a "twenty-four-month program" by unidentified Camden County homicide detectives in return for his cooperation in connection with a murder case against defendant's cellmate, Kevin Cook, that he had not received the promised sentence despite his cooperation, and that trial counsel was ineffective in not obtaining that sentence. Defendant also argued that, in violation of State v. Freudenberger, 358 N.J. Super. 162 (App. Div. 2003), he had not been advised of the five-year period of parole supervision, as the result of NERA, applicable to his potential sentence for attempted murder, or that a violation of parole could result in service of a sentence longer than the base term. He claimed ineffectiveness by trial and appellate counsel in not raising that issue. The PCR petition was denied without a hearing.

On appeal, defendant again makes the same arguments, while also raising claims of ineffective assistance by PCR counsel. Through appellate counsel, defendant argues:

POINT I

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND POST-CONVICTION RELIEF COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.

POINT II

THE COURT VIOLATED STATE V. FREUDENBERGER [ 358 N.J. SUPER. 162 (APP. DIV. 2003)] WHEN THE DEFENDANT WAS NOT INFORMED AT THE PLEA REGARDING THE NATURE OF PAROLE UNDER THE NO EARLY RELEASE ACT.

Defendant has also submitted a pro se brief in which he argues:

THE POST-CONVICTION COURT ERRED BY FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEREFORE, THE MATTER MUST BE REVERSED FOR AN EVIDENTIARY HEARING, AND THEN THE GRANT OF POST-CONVICTION RELIEF.

We affirm.

We decline to address defendant's argument regarding the ineffectiveness of PCR counsel. While the argument could not have been raised before the motion judge, it is nonetheless not ripe for our review because trial-level consideration of defendant's argument has not occurred. A second PCR application is required, if warranted.

We find no merit, under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), in the claim that trial counsel was ineffective in failing to secure the twenty-four-month program that defendant states he was offered by detectives in exchange for providing information regarding the murder allegedly committed by defendant's cellmate, Kevin Cook. After a careful review of the record, we conclude, as we did on appeal from defendant's conviction, State v. Arthur, supra, slip opinion at 14, that defendant's allegations are not credible.

Our determination is based, in part, on the transcript of the extended and detailed retraxit plea hearing conducted in this matter. Although, there, the trial judge mentioned in passing that there was "some indication that there is some Mitigating Factor Number 12 activity," he then told defendant that his cooperation would not "have an effect on me," but could only change the State's view of the case. Following this statement, the judge elicited from defendant on more than one occasion the concession that no deals with the State had been made. That defendant expected a prison sentence is confirmed toward the conclusion of the hearing when defendant requested an earlier sentencing date so that he could be removed from the county jail and did not contest the judge's assertion that he would then be entering "the state system."

Almost immediately after entering his retraxit plea of guilty, defendant sought to vacate his plea arguing, improbably, that he was not informed that the State would be seeking an extended term sentence, that he was unaware of his sentencing exposure, that he had not read the plea form and was not informed of its contents, that he was not guilty, and that he only stated that he had stabbed his girlfriend because he had been assured by his attorney that the admission would result in a lighter sentence. Significantly, defendant did not allege at the time that he had cooperated with the State in connection with the Cook matter, or that he had been promised by anyone that he would receive a twenty-four-month program as a result of that cooperation.

Defendant's allegation that he was promised a program in exchange for his cooperation in the Cook matter first appears in the brief submitted on his behalf on appeal from his conviction and sentence. There, defendant claimed:

DEFENDANT'S GUILTY PLEA WAS IN VIOLATION OF HIS CONSTITUTIONAL RIGHT OF DUE PROCESS, WHEN HE WAS PROMISED A "PROGRAM" IN EXCHANGE FOR COOPERATION IN STATE V. COOK (MURDER CASE), BUT WAS INSTEAD SENTENCED TO CONSECUTIVE TERMS FOR THE PROBATION VIOLATION AND THE INSTANT CASE.

As we previously stated, we rejected defendant's argument as incredible and factually unsupported.

Despite our skeptical comments, in defendant's later certification in support of his application for post-conviction relief, defendant offers no further details regarding the nature of the deal offered to him or of his resulting cooperation. Defendant does not identify those persons offering the deal. He does not explain what the alleged twenty-four-month program entailed or how it could be offered as a sentence on first- and second-degree charges. Defendant does not specify any facts that he provided regarding the Cook matter, and he does not identify anyone to whom he allegedly spoke. As a consequence, we find defendant's bald assertions to be inadequate to establish a prima facie case of ineffective assistance of counsel, entitling defendant to an evidentiary hearing on that claim. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (discussing evidentiary requirements of a prima facie claim), certif. denied, 162 N.J. 199 (1999); State v. Preciose, 129 N.J. 451, 462 (1992) (holding that trial courts ordinarily should hold an evidentiary hearing when defendant has presented a prima facie claim in support of post-conviction relief).

Defendant also argues that he is entitled to post-conviction relief because he was not informed of the periods of parole applicable under NERA to his convictions for attempted murder and aggravated assault, or that if parole were violated, he could as a consequence serve a sentence longer than his base term. Freudenberger, supra, 358 N.J. Super. at 168-70. Our review of the plea transcript confirms that no oral reference to parole occurred in a NERA context, and the State has conceded that the page of defendant's supplemental plea form that addressed mandatory parole under NERA and the consequence of a violation of that parole was not filled out or signed. Nonetheless, the Supreme Court has held in State v. Johnson, 182 N.J. 232 (2005) that in order to obtain post-conviction relief as the result of a Freudenberger violation, defendant must also demonstrate that his lack of knowledge of the mandatory parole required by NERA "was material to the decision to plead guilty and prejudiced [him]." Id. at 241.

In this case, defendant claimed that he would never have pled guilty if he had been informed of the mandatory periods of parole associated with a NERA sentence, and "[t]hat [disclosure of mandatory parole] hurted me more than the sentence, it did." Nonetheless, our review of the plea transcript discloses defendant's willingness to plead guilty, without a sentence recommendation, to a murder that the judge stated could result in a sentence of "life do thirty" and a separate aggravated assault that counsel stated could have resulted in a consecutive maximum extended sentence of twenty years to life. The eighty-five percent parole disqualifier of NERA was recognized as applicable to both crimes. Further, defendant acknowledged the judge's assertion that: "Nobody has made you a promise. I certainly haven't given you any reason to believe that you're going to get anything less than the maximum." And with this knowledge, defendant assented when asked whether entering a plea was "what you want to do."

In light of the fact that defendant entered an open plea with the understanding that he faced potential consecutive sentences exceeding a life term, we agree with the motion judge that knowledge by defendant that he would receive a five-year period of parole supervision upon imposition of a lesser, nineteen-year custodial sentence that was subject to NERA could not reasonably be found to have materially influenced defendant's determination to enter an open plea of guilty to the crimes charged. As the Court has held: "[T]he plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead." Id. at 242 (quoting State v. Howard, 110 N.J. 113, 123 (1988)). We find such to be the circumstance here, and therefore affirm the trial judge's denial of post-conviction relief.

Affirmed.

Strickland requires defendant to show that (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) counsel's "deficient performance prejudiced the defense." Ibid.

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A-1863-06T4

June 20, 2008