STATE OF NEW JERSEY v. TERRANCE BRADLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0790-07T40790-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE BRADLEY,

Defendant-Appellant.

_______________________________________

 

Submitted March 4, 2009 - Decided

Before Judges Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-05-2458.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Terrance Bradley, appeals from the denial of a petition for post-conviction relief (PCR). We affirm.

On November 24, 1997, when defendant was fifteen-years-old, he shot Kareem Jahid Lawrence. The day before the shooting, Lawrence, his brother, Jameel McNeal, and another young man known only as Omar, engaged in a fist fight with Shihaab Loyal. According to Loyal, later that same evening Lawrence fired off some shots in Loyal's presence. No injury resulted. The incident was reported to the police.

The next day, McNeal saw defendant, who was a friend of Loyal, on the fourth floor balcony of an apartment house. McNeal warned his brother and told him to run toward a parked car. Five shots rang out from the balcony. Lawrence fell mortally wounded.

Defendant dropped the gun into the apartment incinerator. Defendant was arrested and charged as a juvenile. He gave a detailed, voluntary statement to the police. Following a waiver hearing, the Family Part forwarded the charges to the Law Division.

Defendant pleaded guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The State agreed to recommend that the sentence not exceed fifteen years. Consistent with the agreement, on August 19, 1998. Judge Betty J. Lester merged the convictions and imposed a fifteen-year term with a NERA parole disqualifier.

Defendant appealed. We affirmed. State v. Terrance Bradley No. A-3297-00T4 (App. Div. April 8, 2003), certif. denied, 177 N.J. 495 (2003).

On April 30, 2004, more than five years after the conviction, defendant filed pro se a PCR petition. He alleged that: (1) trial counsel rendered ineffective assistance when counsel induced him to plead guilty to aggravated manslaughter; (2) counsel was ineffective for allowing him to plead guilty against the weight of the evidence; (3) his factual basis was insufficient to support a conviction for aggravated manslaughter; and (4) he was not advised of the penal consequences of his plea. PCR counsel was appointed. He filed a brief in support of the PCR petition. Judge Lester determined that an evidentiary hearing was not required and denied the petition. She found that the petition was time-barred by Rule 3:22-12a. On the merits, she rejected each allegation as follows:

As to [defendant's] claim that the factual basis provided in support of his plea of guilty was insufficient to support a conviction for aggravated manslaughter, this issue is procedurally barred pursuant to R. 3:22-4 as a claim that should have been raised on direct appeal. Moreover, the Appellate Division ruled that the factual basis given during the plea proceedings supported the charge of aggravated manslaughter.

. . .

As to petition's motion to vacate his guilty plea based on his claim that he was not advised of the penal consequences of his plea, this claim is procedurally barred pursuant to R. 3:22-4 as a claim that should have been raised on direct appeal. Here [defendant] claims that he was not advised that he would be required to serve a five-year term of supervision in the community upon the completion of his sentence of incarceration. To the contrary, this information is contained in the plea forms submitted with [defendant]'s brief as exhibit Da-8. [defendant] stated on the record that he had reviewed the plea form with his attorney; that he understood them and had no questions as to their contents.

. . .

The [defendant] claims that the trial counsel was ineffective before and during plea negotiations, and that but for that ineffectiveness, the [defendant] would not have pled guilty. [defendant] claims that trial counsel used the "unrealistic threat that (he) would be convicted of first degree murder if he went to trial; and that if he rejected the plea, he would spend the rest of his life in prison."

This court finds that trial counsel's performance was not deficient. It is the ethical obligation of an attorney representing a client on criminal charges to review with his client the charges against him; the evidence that may be presented by the prosecutor at trial; any defenses that are available; trial strategy; and the exposure at sentencing should a verdict of guilty be returned on all charges. No attorney can predict what the outcome of a trial will be.

Assuming for the purpose of this discussion that counsel said what [defendant] claims, counsel conveyed a possible outcome if the case went to trial. Charged with murder, the [defendant] faced a mandatory minimum sentence of thirty years with thirty years to be served without eligibility for parole. Counsel conveyed the full gravity of the charges and the sentence her client faced.

. . .

With regard to the claim of ineffectiveness of counsel, this court finds that trial counsel's performance was not deficient. [defendant] had made a statement to the police confessing to the shooting; provided his motive for doing so; and revealed the location where he had disposed of the murder weapon. It was likely that this statement would have been admitted at trial. [defendant] offers no claim of a legitimate defense that could have led to his exoneration. A trial attorney can neither insist upon nor prevent a criminal defendant from accepting or refusing a plea offer. A trial attorney should negotiate the best result possible for their client once an informed decision has been made by the client. The court has no reason to believe that counsel did otherwise.

On appeal, defendant contends:

I. DEFENDANT'S PETITION FOR [PCR] WAS NOT TIME BARRED UNDER RULE 3:22-12 AND WAS NOT PROCEDURALLY BARRED UNDER RULE 3:22-4 BECAUSE DEFENDANT ESTABLISHED CERTAIN CRITERIA WHICH ALLOWED FOR A RELAXATION OF THESE RULES.

II. DEFENDANT WAS ENTITLED TO [PCR] BECAUSE THERE WAS NO ADEQUATE FACTUAL BASIS FOR HIS GUILTY PLEA AND HIS GUILTY PLEA WAS NOT MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY.

III. THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR [PCR] SHOULD BE REVERSED BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND POST CONVICTION COUNSEL.

A. Defendant Was Denied The Effective Assistance Of Trial Counsel As Trial Counsel Induced Defendant To Plead Guilty To Aggravated Manslaughter, Allowed Defendant To Plead Guilty Against The Weight Of The Evidence and Failed To Fully Advise Defendant Of The Consequences Of His Plea.

B. Defendant Was Denied The Effective Assistance Of Appellate Counsel When He Failed To Raise The Issues Of The Inadequate Factual Basis For Defendant's Guilty Plea And Trial Counsel's Ineffectiveness For Inducing Defendant To Plead Guilty, Allowing Defendant To Plead Guilty Against The Weight Of The Evidence And Failing To Advise Defendant Of The Consequences Of His Plea.

IV. NOTWITHSTANDING THE MERITS OF DEFENDANT'S ARGUMENTS, THE PETITION FOR [PCR] SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

We reject these arguments substantially for the reasons expressed by Judge Lester in her March 9, 2007 written opinion. We also find no basis to conclude that defendant was coerced or misled into entering the plea agreement. Moreover, the negotiated disposition reduced defendant's exposure from forty years to fifteen years. It is highly unlikely that defendant would have rejected this offer. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (applying the Strickland standard to a guilty plea case).

Defendant also contends:

Defendant Was Denied The Right To Effective Assistance Of Counsel When His [PCR] Attorney Failed To Raise The Issues Of Ineffective Assistance Of Appellate Counsel And Failed To Argue That Ineffective Assistance Of Counsel Claims Based Upon Allegations And Evidence Outside The Record Cannot Be Disposed Of Without A Hearing.

We disagree.

Judged against the standard set by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), we conclude that no showing has been made that PCR counsel rendered ineffective assistance.

Affirmed.

 

No Early Release Act, N.J.S.A. 2C:43-7.2.

(continued)

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A-0790-07T4

July 17, 2009