STATE OF NEW JERSEY v. MICHAEL TATUM

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0102-07T40102-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent

v.

MICHAEL TATUM,

Defendant-Appellant.

_______________________________

 

Submitted January 5, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 01-12-0685.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jeffrey R. Jablonski, Designated Counsel, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Tatum appeals from the denial of his post-conviction relief (PCR) petition. On appeal, defendant contends that trial counsel was ineffective for recommending that he plead guilty; for failing to negotiate a plea agreement; and for failing to take the case to trial. Defendant also contends, for the first time, that appellate counsel was ineffective for failing to raise issues relating to the propriety of the guilty plea. And finally, defendant contends that PCR counsel was ineffective for failing to file a substantive brief on all available issues, specifically appellate counsel's deficiency. We reject these contentions and affirm.

The following facts are summarized from the record. On November 27, 2001, defendant, age eighteen, and Learde Jenkins, a juvenile, planned a robbery of the Foot Locker in Franklin Township to obtain money to purchase drugs. Wearing masks and armed with knives, the two entered the store. Defendant put his knife to the store manager's stomach and ordered her to empty the cash register. Terrified customers inside the store ran out. Jenkins then yelled to defendant, "let's go," and they both fled the store with no money.

Store employees called the police and gave descriptions of defendant and Jenkins. The two were arrested within minutes of fleeing the store and evidence was discovered. After receiving his Miranda warning, defendant admitted that he conspired with Jenkins to rob the store.

Defendant and Jenkins were indicted for first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count three). Defendant retained private counsel to represent him. He pled guilty to all charges without a plea agreement. Jenkins opted for a trial.

At the plea hearing, defendant acknowledged that he decided to plead guilty after discussing with trial counsel the evidence against him and possible defenses. Defendant stated his understanding that there was a presumption of incarceration on count one, that he faced a prison term of ten to twenty years on count one with an eighty-five percent period of parole ineligibility, and that he faced five years on count two and ten years on count three with up to half of those terms to be served without parole. Defendant also said the he understood that there was no plea bargain agreement. Defendant expressed his desire to argue for a lesser sentence rather than enter into a plea agreement. Defendant also acknowledged that he was satisfied with the legal advice he received and that he had reviewed the plea forms with his attorney, which contained no plea agreement.

At sentencing, trial counsel acknowledged defendant's extensive juvenile record, including theft and assault, and numerous failed opportunities at rehabilitation and probation, and emphasized certain mitigating factors and argued for the lowest possible sentence. Judge Edward Coleman, who had presided at Jenkins' trial, noted that by advising defendant to plead guilty, trial counsel "did the right thing because it was an overwhelming evidence case with regard to [defendant and Jenkins]. [Defendant was] virtually caught at the scene."

After balancing the aggravating and mitigating factors and considering that this was defendant's first adult indictable conviction, the judge merged counts two and three into count one and sentenced defendant on count one to a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility. The judge also imposed the appropriate assessments and penalty.

Defendant appealed his sentence. We heard the appeal on our excessive sentencing calendar and affirmed on March 12, 2003.

Jenkins was tried as an adult and convicted. Defendant learned that Jenkins' guilty verdict was overturned on appeal, and that, prior to retrial, he negotiated a ten-year term of imprisonment with an eighty-five percent period of parole ineligibility. As a result, in July 2003, defendant filed a pro se PCR petition. In a brief, prepared by assigned counsel, defendant pointed to the disparity between his and Jenkins' sentences and argued, in part, that due to counsel's deficiencies in recommending that he plead guilty, he should be permitted to retract his plea and proceed to trial.

Judge Paul Armstrong denied the petition, concluding that

[T]he recommendation to plead guilty may indeed have been a sound tactical move by the defendant. And to consider the defendant's guilty plea to be ill-advised due to the sentence of his co-defendant, who went to trial, [] would be to allow the very distorting effects of hindsight that take hold that the [Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] court warned against."

The judge also concluded that defendant made no showing that had he gone to trial there was a likelihood that his sentence would have been more lenient than that he received as a result of his plea. This appeal followed.

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Ineffective assistance of counsel claims require the defendant to show: (1) "'that counsel's performance was deficient[,]'" and (2) "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 687; 104 S. Ct. at 2064; 80 L. Ed. 2d at 693).

"[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. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). It is not enough for the petitioner "to allege simply that an injustice has transpired[.]" State v. Mitchell, 126 N.J. 565, 579 (1992). "The petitioner must be prepared 'to establish, by a preponderance of the credible evidence, that he is entitled to the requested relief.'" Ibid. (internal quotation omitted). The petitioner must allege and articulate specific facts which, if believed, would give the court an adequate basis upon which to rest its decision. Ibid.

Also, where, such as here, a defendant challenges a guilty plea based on trial counsel's deficiency, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59; 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). Defendant makes no such showing here.

There is no evidence supporting defendant's claim of trial counsel deficiency. Evidence of defendant's guilt was overwhelming and he more than likely would have been convicted after trial, as was Jenkins. Thus, trial counsel's strategic decision to recommend a guilty plea and then argue for leniency at sentencing was a valid exercise of judgment. A valid conviction will not be overturned merely because defendant is dissatisfied with counsel's exercise of judgment. State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983).

Based upon our careful review of the record, we discern no reason to disturb the judge's ruling. Defendant failed to establish a prima facie case of trial, appellate or PCR counsel deficiency.

 
Affirmed.

We decline to address defendant's claim of appellate counsel deficiency. Defendant did not raise this claim below. He is barred from doing so here. State v. Arthur, 184 N.J. 307, 327 (2005); State v. Mitchell, 126 N.J. 565, 583-84 (1992) (quoting State v. Cerbo, 78 N.J. 595, 605 (1979)); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offest Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); R. 3:22-4.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant's parents attended both the plea and the sentencing hearings.

(continued)

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A-0102-07T4

February 17, 2009