STATE OF NEW JERSEY v. ROBERT TERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4277-07T44277-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT TERRY,

Defendant-Appellant.

 
 

Submitted January 6, 2010 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-01-0088.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Robert Terry stabbed and killed a good

Samaritan Jose Valdez on October 19, 2001. Defendant admitted his culpability and does not claim to be innocent of the crime. Nevertheless, he seeks post-conviction relief because he believes that he was inadequately represented during the negotiation of a plea bargain and therefore suffered from the ineffective assistance of counsel. We disagree, and hereby affirm the denial of his application for post-conviction relief.

I.

After Terry was indicted in an eight-count indictment, he entered a plea of guilty to a single charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), while all other charges were dismissed. On December 12, 2003, Judge Ronald G. Marmo sentenced defendant pursuant to the terms of the plea agreement to a twenty-four year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In fashioning the sentence of incarceration, Judge Marmo found aggravating factors three, six, and nine, but no mitigating factors.

On September 22, 2005, this court remanded the matter for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005). On October 28, 2005, Judge Marmo conducted the remand sentencing, which resulted in the imposition of an identical term of imprisonment and application of the NERA. Again, Judge Marmo found aggravating factors three, six, and nine to exist, with no mitigating factors. The initial pre-sentence report was not updated, but defendant's then-attorney was permitted to supplement its contents by advising the sentencing court of defendant's positive conduct while in prison, which included obtaining certificates for participating in anger management therapy, participating in a centering prayer program, working as a clerk in the vocational training at the television and radio repair shop, and attempting to enroll for psychological counseling.

Defendant sought review of the sentence with this court. On May 3, 2006, we affirmed the judgment of the trial court, finding "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." Further judicial review was denied. State v. Terry, 188 N.J. 353 (2006).

On February 7, 2007, defendant filed a pro se application for post-conviction relief (PCR). In it, he argued the following points:

POINT ONE - PETITIONER CHALLENGE[S] THE FACTUAL BASIS OF AGGRAVATED MANSLAUGHTER, 1ST DEGREE, WHICH INVOLVE[S] THE NERA ACT.

POINT TWO - WHETHER DEFENSE COUNSEL WAS INEFFECTIVE DURING PLEA NEGOTIATIONS, IN VIOLATION OF PETITIONER'S SIXTH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION.

A few months later, defendant's PCR attorney presented the following arguments to Judge Marmo:

POINT 1. THE LACK OF A NEW PRE[-]SENTENCING REPORT AFTER REMAND DENIED DEFENDANT DUE PROCESS, WHEREFORE, THE ENTIRE SENTENCING SHOULD BE CONDUCTED ANEW.

POINT 2. THE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM THE PETITIONER THAT THE STATE HAD MADE AN ADVANTAGEOUS PRETRIAL OFFER.

POINT 3. THE TRIAL COURT FAILED TO CONSIDER PROPERLY CERTAIN MITIGATING FACTORS WHEN SENTENCING DEFENDANT.

 
In support of Point 2 that defendant's attorney failed to adequately convey to him a more advantageous plea offer from the State defendant's proof consisted entirely of a notarized letter:

On November 30, 2007, after conducting a PCR hearing but not an evidentiary hearing Judge Marmo denied defendant's application. The trial judge, who was very familiar with the case's history leading up to the first and second sentencings, rejected defendant's contention that there ever was a more favorable plea offer than twenty-four years incarceration. Judge Marmo noted:

With regard to Point No. 2 apparently there is nothing at all to support the claim that there was some plea offer that was available to the defendant, that was communicated to his attorney, that was more favorable to the defendant than the plea offer that he ultimately accepted, other than the allegation of the defendant.

In fact, after a close reading of defendant's letter, it is evident that it does not contain allegations that an offer was made of less than twenty-four years by the State. Rather, it only states, "Judge Caposella granted me a plea-bargain of eighteen years." The full details of the supposed alternative plea offer do not appear anywhere in the record.

When the matter first came to Judge Marmo's attention in 2003, he conducted a plea allocution hearing where the following colloquy occurred:

Q. All right. Mr. Terry, I understand that your intention is or remains today as you indicated earlier this week that you wish to admit your guilt to that charge of aggravated manslaughter; is that correct?

A. Yes.

Q. I assume you are doing that only because, first of all and certainly most important of all, you recognize that you did, in fact, commit at least that offense, and I'm sure you are doing it because you want to accept the terms of a plea settlement agreement that Mr. Galluccio has arranged on your behalf to end the prosecution against you of all of the matters in this Indictment.

So are both of those things true?

A. Yes.

Q. Number one, you did this crime as the charge has been amended; number two, you want the plea settlement agreement?

A. Yes, sir.

Q. Let's talk then about exactly what the plea settlement agreement is so it is clear that you understand it completely.

The State has agreed, after we talk about what it is you say you did that constitutes the commission of this crime, if I'm satisfied that constitutes a factual basis and in fact the commission of a charge of aggravated manslaughter and I accept your plea of guilty to that charge, the State has agreed to the following: To dismiss the other charges in the Indictment, which are Counts 2, 3, 4, 5, 6, and 7.

The State has agreed to recommend that your sentence would 24 years in prison, 85 percent of that time to be served without parole. The arithmetic on that comes out to 20 years, 4 months and 26 days to be served before parole eligibility. Do you understand that much of it so far?

A. Yes.

The plea allocution proceeding included several other references to a twenty-four year sentence, all without question or protest from defendant. The written plea form signed by defendant indicated, "Prosecutor recommends 24 years with 85% before parole."

II.

On appeal, defendant raises the following arguments:

POINT ONE: MR. TERRY IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO: THE CLAIMS OF MR. TERRY'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).

We do not agree with defendant's main contention that he was denied the effective assistance of counsel because an eighteen-year plea bargain was supposedly not communicated to him by defense counsel. An evidentiary hearing was not required and the Law Division's rejection of the PCR was proper. Moreover, we find defendant's other arguments unpersuasive, and affirm.

The Law Division must grant a defendant an evidentiary hearing on a claim of ineffective assistance of counsel whenever a prima facie case has been established by a defendant. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462 (1992); State v. Moore, 273 N.J. Super. 118, 126-27 (App. Div.), certif. denied, 137 N.J. 311 (1994).

To establish a case of ineffective assistance of counsel, a defendant must satisfy the two prongs of the Strickland/Fritz paradigm. First, a defendant must show that counsel was actually deficient. Second, he must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

When evaluating whether a defendant has presented a prima facie case, the PCR judge "should view the facts in the light most favorable to a defendant." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If, under this inquiry, the PCR judge determines that the defendant could possibly be entitled to relief, the defendant is entitled to an evidentiary hearing unless "the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (internal citations omitted).

Defendant argues that he presented a prima facie case because there were differing views among the court, the State, and defendant about the existence of a better plea offer. However, this was not the case. The record revealed almost exactly what Judge Marmo described as "nothing at all to support the claim that there was some plea offer that was available to the defendant . . . other than the allegation of the defendant." That, standing alone against the unchallenged evidence of what occurred during the plea allocution hearing, is simply insufficient to trigger a further evidentiary inquiry.

An application for post-conviction relief is entitled to a plenary hearing in every case in which an issue of fact is asserted. The Law Division judge, after considering the papers submitted in support of and in opposition to the application, has the discretion to evaluate an issue as lacking adequate factual or legal merit. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). See also State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999). Judge Marmo's determinations adequately and correctly measured the sufficiency of defendant's attenuated proofs and found them lacking.

Defendant makes two claims relating to the sentencing process that he had to undergo twice. First, he argues that he was entitled to an entirely new pre-sentence report when he was resentenced under Natale, supra, 184 N.J. at 458. Second, he claims that Judge Marmo's sentencing calculus was askew insofar as the judge failed to adequately find or address any appropriate mitigating factors.

Both of these issues are inappropriate for PCR review as they were required to be part of the direct appeal and were not previously included. Defendant could have challenged the merits of his sentence on remand as part of his direct appeal, or raised the very same contentions about allegedly omitted mitigating factors and the lack of an updated pre-sentence report, but failed to do so. Those failures bar his effort to revive such contentions in a PCR in the guise of an ineffective assistance of counsel claim. R. 3:22-4; State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd in part and remanded, 162 N.J. 240 (2000); State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

Lastly, we address defendant's pro se argument that there was an inadequate factual basis to support his conviction for aggravated manslaughter. A person is guilty of aggravated manslaughter if he or she recklessly causes the death of another person under circumstances manifesting extreme indifference to human life. N.J.S.A. 2C:11-4(a). Thus, the elements of the crime are: 1) a reckless causing of death by the actor and 2) circumstances manifesting extreme indifference to human life. See State v. Curtis, 195 N.J. Super. 354, 363 (App. Div.), certif. denied, 99 N.J. 212 (1984).

The degree of recklessness for first-degree aggravated manslaughter has been described as requiring the factfinder to decide whether the homicide was committed under circumstances involving a mere possibility of death or whether the circumstances involve a probability of death. If the former, the verdict must be reckless manslaughter, but if found to be the latter, the verdict must be aggravated manslaughter. Id. at 364-65.

At the plea allocution proceeding, defendant provided the following factual basis for the crime:

Q. Robert, I want to take you back to October 19 of 2001, approximately two years ago here in the City of Paterson. On that day, did you go to a building and have a conversation or interaction with your former girlfriend [Rhonda].

A. Yes.

. . . .

Q. Is it fair to say during this interaction between you and Rhonda an argument developed?

A. Yes.

Q. As a result of that argument, an individual by the name of Jose Valdez, who turned out to be the landlord of the building, interceded and attempted to stop the argument between you and Rhonda; is that correct?

A. Yes, the super, Mr. Jose Valdez. Yes, correct.

Q. Now you told me that at that point when he attempted to intercede or intervene in this situation, he had a knife; is that correct?

A. Yes.

. . . .

Q. And you and he got into a struggle; is that correct?

A. Yes.

Q. And so you now were in possession of the knife and he no longer had a weapon; is that correct?

A. Yes.

Q. At some point with you holding the knife in your hand, Mr. Valdez attempted to retreat or withdraw or walk away from this situation; is that correct?

A. Yes.

Q. In fact, he turned his back to you; is that correct?

A. Yes.

Q. And you lunged at him and thrust the knife into his body on several occasions; is that correct?

A. Yes.

Q. Various parts of his body; the back of his head, his back, and other parts of his body; is that correct?

A. Yes.

Q. I've gone over the autopsy report with you, and it indicates that Mr. Valdez sustained several stab wounds to the head, upper torso, and other parts of his body resulting in injuries that caused his death. Do you understand that?

A. Yes.

A few days after this proceeding, another brief hearing was conducted by Judge Marmo in order to explore the terms of the plea bargain in full. However, the factual basis for the plea was re-addressed as follows:

Q. Just briefly, on October 19, 2001, here in the City of Paterson, you stabbed Mr. Valdez on several occasions and - - strike that. You stabbed him several times resulting in his death; is that correct?

A. Yes.

Q. With a knife?

A. Yes.

Q. And it was as a result of an argument that you had gotten into with your former girlfriend, and he was the supervisor who attempted to break that argument up; is that correct?

A. Yes.

Q. You got into an argument with him, and at some point you had a knife in your hand and you stabbed him when he made an effort to get away; is that correct?

A. Yes.

Q. Obviously by doing that, it resulted in many, many stab wounds to various parts of his body, and you acknowledge that your actions obviously demonstrated an extreme indifference to the value of human life; is that correct?

A. Yes.

Defendant's statements firmly establish each of the necessary elements for aggravated manslaughter. It is clear from this colloquy that the relevant circumstances involved the probability of death. Defendant's pro se challenge to the factual basis is therefore rejected.

Affirmed.

 

N.J.S.A. 2C:44-1(a)(3); -1(a)(6); and -1(a)(9).

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test for application in New Jersey).

We note that defendant was not prohibited from presenting evidence that implicated one or more mitigating factors. He took advantage of that opportunity to explain to the sentencing court how he was conducting himself in prison. However, defendant was not entitled to a new pre-sentence report because our September 22, 2005 order of remand incorporated the Supreme Court's instructions, which expressly made clear that the reconsideration of sentences with the removal of presumptive terms would be "based on the original sentencing record."

(continued)

(continued)

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A-4277-07T4

January 25, 2010