STATE OF NEW JERSEY v. CHRISTOPHER TOKLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6338-07T46338-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER TOKLEY,

Defendant-Appellant.

________________________________

 

Submitted November 5, 2009 - Decided

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-09-0452.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In 1999, defendant Christopher Tokley was charged with numerous offenses in two separate indictments (No. 99-04-0186 and No. 99-09-0452) filed in Burlington County. Pursuant to a plea agreement, defendant subsequently pled guilty on February 25, 2000 to a count of first-degree armed robbery, N.J.S.A. 2C:15-1a(2), in Indictment No. 99-09-452, and also to an amended count of third-degree theft from a person, N.J.S.A. 2C:20-3a, in Indictment No. 99-04-0186.

As part of the plea agreement, the State agreed to recommend that defendant's sentence on the robbery not exceed twenty-five years, with an eighty-five percent period of parole ineligibility, pursuant to the then-existing version of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The State further agreed to recommend a sentence of four years flat for the theft offense, to run concurrent with the sentence imposed for the robbery. The State also agreed to dismiss the four remaining counts of Indictment No. 99-09-0452, which had charged assorted weapons offenses.

In pleading guilty to the robbery, defendant admitted to the trial court that he and another person had gone to a Texaco station in Willingboro on September 6, 1999 "[t]o go see if we could find somebody to rob . . . [.]" In responding under oath to questions from his attorney about the underlying facts, defendant specifically acknowledged that he had carried to the Texaco station "an operable handgun," and that the weapon was "a working handgun that could actually fire a bullet[.]"

The prosecutor and defense counsel each stated on the record at the plea hearing that the State was recommending a sentence on the robbery that would include the eighty-five percent parole disqualifier. It was noted that defendant's prior criminal record already included a weapons-related conviction under the Graves Act. It was also noted that, because of his prior record, defendant was exposed to an extended term of up to life in prison, but that the State was instead recommending a twenty-five-year term.

Defendant assured the trial court that he had gone over the plea form with his attorney, that he understood its terms, and that he was entering his plea voluntarily. He expressed no confusion at that time about the eighty-five percent parole ineligibility factor, nor any disagreement with its applicability in this case.

Thereafter, on April 7, 2000, defendant appeared with his counsel for sentencing. At that time, defense counsel reiterated that he had discussed with defendant that he was subject to an eighty-five percent parole disqualifier on the robbery sentence "because of the fact that a weapon was used and it's a first[-]degree crime and there were obvious threats of violence."

Consistent with the plea agreement, the trial court sentenced defendant to a twenty-five-year term on the robbery conviction, subject to the eighty-five percent NERA parole disqualifier, plus a concurrent four-year term on the theft offense. As the court was imposing the sentence and explaining why the NERA provision applied, defendant interrupted and stated, "I would like to say the gun [I possessed] was not functional. It had no bullets. It had no revolver [sic]." The court found these assertions inconsequential, noting that the victim "at whose head it [the gun] was pointed had no clue" that it allegedly had no bullets in it or had no revolver mechanism.

Defendant filed a direct appeal of his sentence, which was argued on the Sentence Oral Argument calendar in January 2001. Through his counsel, defendant argued that he should not have been treated as a second-time Graves Act offender, and that his sentence on the robbery should have been less than twenty-five years. We remanded the matter to the trial court for resentencing and to examine the pertinent Graves Act implications.

At resentencing in February 2002, the trial court found that defendant was indeed properly treated as a repeat Graves Act offender. The court accordingly reimposed the twenty-five-year prison term. However, defendant's period of parole ineligibility was altered because of case law developments arising during the interim between the April 2000 sentencing and the February 2002 resentencing. In particular, the parties agreed that case law now precluded the NERA parole disqualifier from applying to that portion of defendant's sentence, i.e., five years, which exceeded the maximum regular sentence of twenty years for the first-degree robbery. See State v. Andino, 345 N.J. Super. 35, 38-39 (App. Div. 2001). Consequently, with the acquiescence of both sides, the trial court directed that the eighty-five percent parole disqualifier only applied to the first twenty years of defendant's twenty-five-year sentence, and not to the additional five years representing an extended term.

Defendant thereafter moved on various grounds for reconsideration of the trial court's resentencing disposition. The trial court denied that motion on the papers, in an order and accompanying letter opinion dated January 23, 2003.

Defendant then sought further appellate review. On June 29, 2005, we issued an order classifying the January 2003 decision on reconsideration as being instead a denial of a first petition for post-conviction relief ("PCR"), related to a claim of an illegal sentence. Consequently, we again remanded the matter back to the trial court, this time as a PCR application, see Rule 3:22-2(c), and directed the assignment of counsel to defendant for that purpose.

Oral argument on the PCR application was held in the Law Division on April 11, 2008. Defense counsel principally argued that defendant had wrongfully been subjected to a parole disqualifier under NERA because the gun used in the Texaco robbery was allegedly inoperable. Counsel relied upon case law that had evolved under NERA after defendant's plea and sentencing, including State v. Austin, 335 N.J. Super. 486 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001), which held the then-existing terms of the NERA statute inapplicable to situations where the firearm used in the crime was inoperable.

In a related fashion, PCR counsel argued that defendant's trial attorney had been unconstitutionally ineffective in allowing him to plead guilty to a NERA offense, again based upon the premise that the gun used in the Texaco robbery was, in fact, inoperable. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (holding that, to establish a constitutional deprivation, a convicted defendant must demonstrate that prior counsel's performance was deficient, and that the deficient performance actually prejudiced his or her defense); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

Following oral argument, Judge Almeida denied defendant's PCR application, explaining his reasons for doing so in an eighteen-page written opinion dated April 30, 2008.

Defendant now appeals the denial of his PCR petition. He raises the following points for our consideration:

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

B. BECAUSE DEFENDANT POSSESSED AN INOPERABLE GUN DURING THE COMMISSION OF THE ROBBERY, APPLICATION OF [THE] NERA ENHANCEMENT WAS NOT APPLICABLE AND SHOULD NOT HAVE BEEN IMPOSED

C. THE TRIAL COURT'S FAILURE TO PROVIDE THE DEFENDANT WITH A HEARING CONSISTENT WITH THE REQUIREMENTS OF N.J.S.A. 2C:43-7(E) WARRANTS THE VACATING OF HIS CURRENT SENTENCE

D. DEFENDANT ARGUES HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

E. DEFENDANT MAINTAINS THAT HE SHOULD BE ALLOWED TO RETRACT HIS PLEA BECAUSE HE WAS NOT PROPERLY ADVISED OF THE PENAL CONSEQUENCES OF HIS NEGOTIATED PLEA AGREEMENT

We have fully considered these arguments, in light of the record and the applicable law. Having done so, we affirm the denial of PCR relief, substantially for the cogent reasons detailed at length in Judge Almeida's written opinion.

We underscore that even if Austin, supra, were applied to cases such as defendant's that were pending in the Appellate Division when that case was decided on December 13, 2000, the record here is inadequate to establish that the firearm used by defendant in the Texaco robbery was, in fact, inoperable. Defendant specifically admitted, in two separate sworn answers, at the February 2000 plea hearing that the gun he had brandished at the Texaco station was operable. He attempted to recant that position only later, at his sentencing. There is no ballistics report or other documentation before us corroborating defendant's present assertion of the gun's inoperability. In addition, with respect to defendant's claim that the gun had no bullets in its chamber, we note that we applied the former version of NERA to robberies where the gun was operable but simply unloaded. See State v. Jules, 345 N.J. Super. 185, 187 (App. Div. 2001).

Moreover, the Supreme Court never passed on the correctness of Austin's operability holding, because NERA was thereafter amended to be applicable only to certain enumerated crimes, thereby eliminating the need for judicial inquiry into the operability or deadly characteristics of a weapon used in a NERA offense. See N.J.S.A. 2C:43-7.2 (amended June 29, 2001).

In sum, we are satisfied, as was the PCR judge, that defendant's challenge to his parole ineligibility period under NERA lacks merit, that his trial counsel was not demonstrably ineffective, and that there was no need for an evidentiary hearing on his PCR petition. See State v. Preciose, 129 N.J. 451, 459 (1992). The balance of defendant's arguments on appeal are not worthy of discussion. R. 2:11-3(e)(2).

Affirmed.

 

The judge who originally accepted defendant's plea and who sentenced him in 2000 has since retired.

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9

A-6338-07T4

December 1, 2009