STATE OF NEW JERSEY v. KENYADA GASTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3299-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENYADA GASTON,

Defendant-Appellant.

_______________________________

October 24, 2011

Submitted July 12, 2011 - Decided

Before Judges R. B. Coleman and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-04-0691.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial, without an evidentiary hearing, of his petition for post-conviction relief (PCR). We affirm.

A grand jury returned an indictment charging defendant with two counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (Counts One and Two); second-degree burglary, N.J.S.A. 2C:18-2 b(1) and/or (2) (Count Three); first-degree kidnapping, N.J.S.A. 2C:13-1b (Counts Four and Five); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Counts Six and Seven); third-degree unlawful possession of a handgun, without first having obtained a permit to carry same, N.J.S.A. 2C:39-5b (Count Eight); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Nine); fourth-degree unlawful possession of a weapon (knife), under circumstances not manifestly appropriate for such lawful uses as it may have N.J.S.A. 2C:39-5d (Count Ten); third-degree possession of a weapon (knife) with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4d (Count Eleven); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Counts Sixteen and Seventeen). As a result of plea negotiations, defendant pled guilty to armed robbery (Count One). In exchange, the State agreed to recommend a twenty-year custodial sentence with defendant serving no more than fourteen years, together with fines and penalties, and the dismissal of the remaining counts in the indictment.

At sentencing, the court imposed a fourteen-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant did not file a direct appeal. Rather, defendant filed a pro se PCR petition. He was subsequently assigned counsel, and an amended verified PCR petition was filed on defendant's behalf. Defendant alleged he was denied effective assistance of counsel because his trial counsel failed to inform him of the nature of the plea and, as a result, he did not enter his guilty plea knowingly, intelligently, and voluntarily. Additionally, defendant contended he was denied his constitutional right to due process because of "improper, uncorrected assessment and weighing of aggravating and mitigating factors during sentencing proceedings."

Following oral argument, Judge Frederick J. Theemling, Jr., denied the petition, concluding no evidentiary hearing was warranted. The judge found "[p]etitioner has failed to present any evidence inside the record or outside the record to show that counsel was ineffective during the plea process[,]" and that the transcript of the plea hearing "demonstrates firmly that petitioner . . . has failed to satisfy either prong of the two-part test for ineffective assistance of counsel." As for defendant's contention that he was denied due process, the judge concluded this claim was a "[bald] assertion that is utterly bereft of any factual support from inside the record or outside the record. Petitioner points to no facts that suggest a different balancing should have occurred." Additionally, citing State v. Odom, 113 N.J. Super.186, 191 (App. Div. 1971), the judge noted that Rule3:22-8 requires that a defendant seeking post-conviction relief set forth specific facts in the petition upon which relief is sought, and that defendant had failed to do so. In addition to the oral opinion issued immediately following oral argument, the court appended a written statement of reasons to the January 28, 2010 order denying defendant's petition, outlining the substantive deficiencies in defendant's petition. The present appeal followed.

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

POINT I

THE PCR COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S PCR PETITION WITHOUT AN EVIDENTIARY HEARING WHERE THE DEFENDANT ESTABLISHED A [PRIMA FACIE] CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND, THEREFORE, THE MATTER MUST BE REMANDED FOR A PRECIOSE1 HEARING.

POINT II

IF THE COURT DETERMINES THAT THE PCR [COURT] DID NOT ABUSE ITS DISCRETION BY DENYING THE PCR PETITION AS INSUFFICIENT UNDER [RULE] 3:22-8, THE COURT SHOULD, NONETHELESS, REMAND THIS MATTER FOR A DETERMINATION OF WHETHER PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).

POINT III

THE PCR COURT ABUSED ITS DISCRETION BY FAILING TO CONSIDER WHETHER THE DEFENDANT'S SENTENCE IS EXCESSIVE.

POINT IV

THE ISSUES RAISED IN DEFENDANT'S [PRO SE] BRIEF, IF ANY, SUPPORT HIS REQUEST FOR A REVERSAL OF HIS CONVICTION AND SENTENCE.

We have considered the arguments advanced in light of the record and applicable legal principles. We conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Theemling in his January 28, 2010 oral and written statements of reasons. We add the following brief comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting a defendant's right to counsel under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain relief based upon a claim of ineffective assistance of counsel, a "defendant must show that his counsel's performance was deficient" and that counsel's deficient performance prejudiced his defense. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

The Strickland test has been applied to challenges to guilty pleas. State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). To have a guilty plea set aside on the basis of the ineffective assistance of counsel, a defendant must show that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" Id. at 457 (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). The defendant must also establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

Measured under these standards, we are in complete agreement with Judge Theemling that defendant offered nothing more than "bald assertions" of ineffective assistance of counsel. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant provided no specific facts to Judge Theemling that would have warranted conducting an evidentiary hearing. Further, assuming defendant's substance abuse contributed to his criminal behavior, nothing in the record establishes that at the time defendant committed the armed robbery, his claimed addiction was such that it negated the requisite mental element the State would have been required to prove in order to sustain an armed robbery conviction. See State v. Whitaker, 200 N.J. 444, 458-59 (2009) (discussing the mental state requirement for armed robbery).

Next, assuming that defendant's co-defendant actually possessed the gun involved, similarly, this would not negate the elements of armed robbery. See State v. White, 98 N.J. 122, 130 (1984) (holding that "an accomplice may be guilty of armed robbery" even though he did not personally possess or use the firearm in the course of the commission of the robbery as long as the accomplice had the purpose to promote or facilitate the commission of the armed robbery).

Additionally, the transcript of the plea hearing reveals defendant acknowledged that his attorney reviewed the consequences of a guilty plea with him, including the parole ineligibility period under NERA. Finally, at sentencing, defense counsel argued for leniency. The sentence imposed was in the middle range for a first-degree crime, and the NERA period of parole ineligibility is statutorily mandated. See N.J.S.A. 2C:43-7.2.

Affirmed.

1 State v. Preciose, 127 N.J. 451 (1992).