STATE OF NEW JERSEY v. VERNON RANDOLPH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3146-07T43146-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VERNON RANDOLPH,

Defendant-Appellant.

 

Submitted March 3, 2009 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 03-05-0652.

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

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Patricia S. Toreki, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an October 25, 2007 order denying his petition for post-conviction relief (PCR). On appeal, defendant raises three points for our consideration:

POINT I

TRIAL COUNSEL WAS INEFFECTIVE FOR ADVISING DEFENDANT TO ENTER A PLEA WITHOUT FIRST CHALLENGING THE STATE'S BURDEN TO PROVE THE REQUIRED ELEMENTS OF ROBBERY IN THE FIRST DEGREE.

POINT II

DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE ENTITLING HIM TO AN EVIDENTIARY HEARING.

POINT III

DEFENDANT'S MOTION FOR POST CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY BARRED FROM CONSIDERATION ON THE MERITS.

We conclude that defendant's arguments are without merit and affirm substantially for the reasons expressed by Judge Citta.

Defendant's PCR petition is primarily couched in terms of ineffective assistance of counsel. Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). "'[T]he right to counsel is the right to the effective assistance of counsel.'" Id. at 686, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 52 (1987).

To establish a prima facie case of ineffective assistance of counsel, a defendant must demonstrate that defense counsel's performance was indeed deficient and that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. A strong presumption exists that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Ibid.

Against this standard, we measure defendant's arguments. His first is that trial counsel was ineffective for failing to challenge the factual basis for the robbery charge to which he pleaded guilty. Procedurally, defendant was charged with first-degree robbery and second-degree aggravated assault on May 28, 2003. On May 25, 2004, he pleaded guilty to first-degree robbery, and the court dismissed the remaining charge. The court sentenced defendant on July 23, 2004, to an eleven-year custodial term with an eighty-five percent period of parole ineligibility.

Defendant filed an appeal, limited to challenging his sentence, and appeared before an excessive sentencing panel of this court on December 13, 2005. We affirmed his sentence and the Supreme Court denied defendant's petition for certification.

Given this procedural history, defendant's claim that the factual basis for his guilty plea to first-degree robbery was insufficient is procedurally barred. See R. 3:22-4. The issue could have been raised on direct appeal. What is more, the argument is substantively without merit. Defendant signed the plea agreement that expressly states that he was being charged for first-degree robbery with a total exposure of twenty years, and that the State would seek a sentence of fifteen years with an eighty-five percent period of parole ineligibility. Although at his plea hearing, defendant testified that he could not remember what happened at the time of the robbery, he agreed that the statement he had given police acknowledging his participation in the robbery was correct, that he had reviewed the State's discovery materials, and that he had committed the charged offense. He testified at his plea hearing that he participated in a theft, inflicted serious bodily injury upon the victim, and admitted to his offense in a police statement following the robbery.

As to his claim that counsel was ineffective for failing to raise an intoxication defense, at the plea hearing defense counsel acknowledged that a potential defense of intoxication existed, but given the overwhelming evidence against defendant his statement to police, the blood and DNA matching that of the victim on his clothing, defendant was willing to waive the defense as part of the plea agreement. Counsel made this statement in the presence of defendant, who acknowledged that he was satisfied with the plea. Counsel's conduct at the time that defendant entered his guilty plea fell within the wide range of reasonable professional assistance.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

(continued)

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5

A-3146-07T4

March 30, 2009