STATE OF NEW JERSEY v. TRAVON ELLISON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4822-06T44822-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRAVON ELLISON,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 5, 2008 - Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-06-0885.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Kathleen O'Leary, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Travon Ellison appeals from an order entered on January 25, 2007 denying his petition for post-conviction relief (PCR). We affirm.

Pursuant to a negotiated plea agreement, defendant entered a guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4a. The State agreed to recommend a seventeen-year term subject to 85% parole ineligibility and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to recommend that the sentence run concurrently with any sentence defendant was then serving or any sentence imposed on a parole violation. Defendant was sentenced in accordance with the plea agreement on May 26, 1999. On June 5, 2003, we affirmed on the sentence only argument (SOA) calendar. His petition for certification was denied by the Supreme Court on November 17, 2003.

On November 11, 2005, defendant filed a pro se PCR petition. The petition was denied on January 8, 2007, and defendant filed this appeal.

The facts relevant to this application are as follows. At 1:30 a.m. on November 22, 1997, the Jersey City Police Department received a report that a man had been shot. The victim, Jeffrey Anderson, was transported to the hospital and died shortly thereafter.

An eyewitness, Calvin Buckhana, testified that earlier that evening he met Anderson and they hung out on a corner near Ram's Bar. Buckhana testified that defendant approached them, reached into his jacket and pulled out a silver handgun. Buckhana then saw co-defendant Bryan Miles approach pointing a black gun at Buckhana. Miles fired the gun but it malfunctioned. Buckhana and Anderson ran but when Buckhana turned, he saw defendant aiming the silver gun at Anderson's back. Defendant fired and Anderson fell face first into the street. Buckhana testified that defendant approached Anderson and shot him again several times at point blank range. Defendant and Miles then fled and Buckhana ran to Ram's Bar for help. Buckhana further testified that he knew defendant for approximately seven years before this incident and identified defendant from a photo lineup.

A second eyewitness, Ly'te Williams, corroborated Buckhana's testimony. Williams was across the street when the shooting started and he was able to identify both defendant and Miles.

After the shooting, the police received an anonymous tip regarding the location of the car defendant had arrived in on the night of the shooting. Defendant's sister, Ebony Ellison, owned the car and was in it with her friend, Jocelyn Adams, when the police arrived. Ebony told the police that she was in the vicinity of Ram's Bar, along with defendant and others on the night of the shooting.

Six days after the shooting, on November 28, 1997, defendant's attorney notified the police that defendant wanted to surrender. He later changed his mind, but on December 1, 1997, co-defendant Miles surrendered to the police. On December 2, defendant surrendered.

With his attorney present and after Miranda warnings had been read to him, defendant gave a statement to the police admitting that he was present at the shooting but claimed that Miles killed Anderson. Defendant claimed that he walked past and bumped Anderson in front of Ram's Bar and continued walking. As he reached the front door, he heard gunshots, turned around and saw Miles shoot Anderson several times. He claimed that Miles was carrying the silver .45 automatic for protection because earlier that day he and Miles had an altercation with "Tutu," who had shot at them. Defendant also said that earlier in the week Anderson had shot at him, Miles and "Sharkey" because they refused to give one of Anderson's boys a "dip" cigarette for free. Defendant also maintained that Miles shot Anderson.

In his PCR petition, defendant alleged that he was never advised that he would have a five-year parole supervision term after he had completed serving his NERA sentence. He claims that the additional five years increases his sentence from seventeen to twenty-two years and that if he had known his sentence would be increased to twenty-two years, he would not have accepted the plea agreement.

In this appeal, defendant argues:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF EFFECTIVENESS OF TRIAL COUNSEL

Defendant first argues that the PCR court erred in finding that defendant failed to demonstrate ineffective assistance of counsel. He maintains that trial counsel's performance was deficient because counsel failed "to inform defendant of the NERA parole period." Defendant claims that he "would not have accepted the plea agreement had trial counsel advised him correctly regarding the parole period."

To establish a prima facie claim of ineffective assistance of counsel a defendant has to satisfy the two-prong test defined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 53-58 (1997). Under the Strickland test, "a reviewing court must determine: (1) whether counsel's performance 'fell below an objective standard of reasonableness,' and if so, (2) whether there exists a 'reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different.'" State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland, supra, 466 U.S. at 688, 694).

To satisfy the first prong of the Strickland test, a defendant must show that counsel's acts or omissions, considered in light of all the circumstances of the case, fell "'outside the wide range of professionally competent assistance.'" Id. at 314 (quoting Strickland, supra, 466 U.S. at 690). In applying this prong "'[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how to best represent a criminal defendant.'" Ibid. (quoting Strickland, supra, 466 U.S. at 688-89). "'A strong presumption,'" therefore, is created "'that counsel's conduct falls within the wide range of reasonable professional assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 689).

To accept a guilty plea, "the court must ensure that defendant is informed of the direct penal consequences of the plea, generally those relating to sentencing." Pressler, Current N.J. Court Rules, comment 1.4.1. on R. 3:9-2 (2009) (citing State v. Smith, 306 N.J. Super. 370, 383-84 (App. Div. 1997)). "If the defendant is uninformed or misadvised, the plea is subject to withdrawal if defendant would not have pleaded guilty had the correct information been supplied." Ibid. "Nevertheless, the failure of the court to meticulously follow the plea-acceptance procedure will not warrant withdrawal of the plea if defendant otherwise understood its consequences." Ibid. Moreover, a defendant must be advised of (1) "the maximum penalty for the crime to which he is pleading guilty"; and (2) "understand both discretionary and mandatory parole ineligibility terms that may be imposed" including NERA's mandatory period of parole supervision. Id. at comment 1.4.2. to R. 3:9-2 (citing State v. Kovack, 91 N.J. 476 (1982); State v. Rosado, 182 N.J. 245, 246 (2005)).

Here, the PCR court correctly denied defendant's PCR petition because defendant failed to establish a prima facie claim of ineffective assistance of counsel. Defendant argues that he made a "misinformed decision regarding the consequences of entering a guilty plea" because his trial counsel never informed him of the NERA parole period. Defendant signed the "Supplemental Plea Form for No Early Release Act Cases," however, acknowledging that "the court must impose a ten-year term of parole supervision." Defendant contends that, even though he signed the plea agreement, he signed it without "scrutinizing the paperwork in detail" because trial counsel never informed him of the NERA parole period. Nevertheless, defendant confirmed to the trial court when it accepted his plea that his trial counsel explained all the questions on the plea form. Defendant also confirmed that he was satisfied with the advice and assistance he received from trial counsel. Consequently, defendant failed to meet the first prong of the Strickland test.

Defendant next argues that the PCR court erred in "failing to grant defendant an evidentiary hearing on the issue of ineffectiveness of trial counsel." He maintains that under State v. Marshall, 148 N.J. 89, 158 (1997), PCR courts "ordinarily should grant evidentiary hearings if a defendant has presented a prima facie case in support of [PCR]." Defendant argues that he is entitled to an evidentiary hearing because he established a prima facie claim of ineffective assistance of counsel.

As we have already discussed, defendant failed to demonstrate a prima facie case for PCR. He is not, therefore, entitled to an evidentiary hearing.

Affirmed.

 

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

Smoking "dip" or "dip cigarettes" means that the cigarette was dipped in the illegal drug phencyclidine (PCP). PCP Fast Facts, U.S. Department of Justice, http://www.usdoj.gov/search?=q= dipped+cigarettes.

Defendant argues that he was not advised of a five-year parole supervision term pursuant to NERA. The supplemental plea form for NERA cases indicates, however, that he agreed to a ten-year term of parole supervision after completion of his NERA term of incarceration.

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A-4822-06T4

January 22, 2009