STATE OF NEW JERSEY v. MARCO TROUTMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5615-07T45615-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCO TROUTMAN,

Defendant-Appellant.

___________________________

 

Submitted December 15, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 98-11-1657 and 99-01-0095.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Reza Mazaheri, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the March 24, 2008 order of the Criminal Part denying his petition for post-conviction relief (PCR). We affirm.

In 1998, defendant faced two indictments, each charging him with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1; and related weapons offenses, N.J.S.A. 2C:39-4(a) and (d), and 39-5(b). On October 4, 1999, pursuant to a negotiated plea agreement, defendant pled guilty to a downgraded charge of aggravated manslaughter and third-degree unlawful possession of a weapon on the first indictment, and to a downgraded charge of aggravated manslaughter on the second indictment.

At sentencing on December 19, 1999, defendant received an aggregate term of thirty-five years in prison subject to N.J.S.A. 2C:43-6(c) (the Graves Act), and an 85% parole ineligibility period, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). This sentence was in accordance with the recommendations set forth in his plea agreement. Defendant appealed his sentence pursuant to Rule 2:9-11, and we affirmed on February 22, 2001.

On October 11, 2005, defendant filed a PCR petition claiming: (1) a Miranda violation based on the alleged alteration of the signature line on his rights waiver form; (2) a defective arrest warrant for lack of probable cause; and (3) the failure to be arraigned within seventy-two hours of arrest. Counsel was assigned and filed a supplemental memorandum adding an argument of ineffective assistance of trial counsel for failure to investigate these three claims.

On March 11, 2008, Judge John Triarsi, who had presided over defendant's plea and sentencing, denied his PCR petition. The judge noted that at his plea hearing, defendant was specifically asked whether he was knowingly and voluntarily waiving his Miranda rights and he responded affirmatively; defendant had also acknowledged that his trial attorney had discussed the facts and the law of the case with him to his satisfaction.

Regarding the allegedly defective arrest warrant, the judge found that defendant could and should have litigated that but chose instead to take "the benefit of his plea." The warrant at issue is not part of the record on appeal.

At the PCR hearing, counsel stated that the "basis of the PCR that [he has] provided to the [c]ourt and [his] legal argument is that [defendant] did not have sufficient time to talk with his attorney and understand everything that was going on." Regarding the Miranda and arrest warrant claims, counsel "incorporate[d] [defendant's] comments that he's included [in] his PCR [petition]." Counsel added that he "did not raise those points because [he] did not see [a Miranda] forum [sic] here that could be used. Since it did not become a trial issue, [he] couldn't see raising that issue."

On appeal, defendant raises the following contentions for our consideration:

POINT I

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR COUNSEL'S FAILURE TO ADEQUATELY INVESTIGATE THE FACTS OF THE CASE PRIOR TO PLEA NEGOTIATIONS AND FAILURE TO CONSULT WITH HIS CLIENT IN PREPARATION OF A DEFENSE

POINT II

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE NUMEROUS PROCEDURAL DEFECTS OF DEFENDANT'S ARREST WHICH RESULTED IN REVERSIBLE ERROR

POINT III

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND IS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING

Having reviewed these contentions in light of the record, we conclude they are without merit. We affirm substantially for the reasons stated by Judge Triarsi in his oral decision from the bench at the conclusion of the PCR hearing. We add only the following brief comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. DiFrisco, 137 N.J. 434, 457 (1994). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

Here, defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. He was, therefore, not entitled to a plenary hearing. State V. Preciose, 129 N.J. 451, 462 (1992).

 
Affirmed.

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

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A-5615-07T4

February 4, 2010