STATE OF NEW JERSEY v. TERRY C. FOREMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5588-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY C. FOREMAN,

Defendant-Appellant.

___________________________________

Submitted May 18, 2011 Decided June 9, 2011

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 02-06-0913, 03-01-0118, 03-02-0235, 03-02-0265.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian O'Reilly, Designated Counsel, of counsel and on the brief).

Robert D.Bernardi, BurlingtonCounty Prosecutor, attorney for respondent (Jaclyn E.Fineburg, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Terry Foreman appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

On January 5, 2002, defendant struck Peter Van Diehl in the head with a hammer as Van Diehl attempted to evict defendant from his apartment. Defendant was indicted under Indictment No. 02-06-913 for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.

On May 8 and 13, 2002, defendant sold cocaine to an undercover detective. He was indicted under Indictment No. 03-02-0265 for two counts of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(10, -5b(3); two counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); two counts of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2.

On June 5, 2002, defendant sold cocaine to the same undercover detective. He was indicted under Indictment No. 03-02-0235 for third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1), -5b(3); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); third-degree possession of CDS, N.J.S.A. 2C:35-10a(1); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2.

The police arrested defendant on August 6, 2002. A search revealed less than one-half ounce of cocaine in defendant's sock. He was indicted under Indictment No. 03-01-0118 for third-degree possession of CDS, N.J.S.A. 2C:35-10a(1).

Following a jury trial on Indictment No. 03-01-0118, defendant was convicted of third-degree possession of a CDS. He subsequently pled guilty under Indictment Nos. 02-06-0913, 03-02-0235 and 03-02-0265 to second-degree aggravated assault, and three counts of third-degree distribution of CDS.

In accordance with the plea agreement, the trial judge imposed five-year terms of imprisonment with two-and-one-half years period of parole ineligibility on each of the CDS convictions. These sentences were concurrent to each other and consecutive to a ten-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, on the aggravated assault conviction. The judge also imposed the appropriate assessments, penalties and fees.

Defendant appealed his conviction and sentence. He withdrew his appeal on September 20, 2005. As a result, the appeal was dismissed. State v. Foreman, No. A-3251-03 (App. Div. Oct. 5, 2005).

The same attorney represented defendant at trial and the plea hearing. In May 2006, defendant filed a PCR petition, contending he was denied the effective assistance of counsel at trial and the plea hearing. Following a hearing, the trial judge concluded that trial counsel rendered ineffective assistance at trial by stipulating to the chain of custody of the narcotics found on defendant and the New Jersey State Police Laboratory results, and stating that the prosecutor was a "good lawyer" and a "friend of mine." The judge ordered a new trial on Indictment No. 03-01-0118.

As to the plea, the judge found no evidence that defendant was forced to plead guilty or misinformed about the consequences of his guilty plea, or that trial counsel's ineffectiveness at trial influenced defendant's decision to plead guilty. The judge also found defendant gave a complete factual basis for the plea after being questioned about the voluntariness of his plea, and that counsel's errors in a prior proceeding were irrelevant as to the analysis required under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge concluded, "defendant entered into this plea freely and through his own volition, certainly, [and] defendant was not forced into accepting this plea by trial counsel." This appeal followed.

On appeal, defendant raises the following contentions:

Point I

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AND SHOULD BE PERMITTED TO VACATE HIS PLEA.

A. Defendant was denied the effective assistance of counsel during his plea.

B. Defendant was denied the effective assistance of appellate counsel.

C. Appellate and PCR counsel were ineffective for not seeking resentencing pursuant to State v. Natale.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law.

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]1

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. Preciose, supra, 129 N.J. at 460. See R. 3:22-4(a). The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a case of ineffective assistance of counsel, the defendant must show that "[defense] counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed. 2d at 698). Our Supreme Court approved that two-part test in State v. Fritz, 105 N.J. 42, 58 (1987), "in which [it] held that the federal standard for evaluating an ineffective-assistance-of-counsel claim approved in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, should apply in defining our state constitutional guarantee of effective assistance of counsel." State v. Nunez-Valdez, 200 N.J. 129, 139 (2009).

When a guilty plea is part of the equation, [the Court has] explained that [t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) 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.

[Id. at 138-39 (third alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).]

Defendant contends that trial counsel's ineffectiveness at trial renders his services during the plea also ineffective, and appellate counsel was ineffective for failing to proceed with his appeal. Defendant focuses on his guilty plea to second-degree aggravated assault, arguing he was not guilty of that charge because the victim suffered no serious bodily injury. We disagree.

"A person is guilty of aggravated assault if he: . . . [a]ttempts to cause serious bodily harm to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" N.J.S.A.2C:12-1b(1) (emphasis added). Defendant admitted at the plea hearing that he struck the victim in the head with a hammer. Also, discovery revealed the victim suffered severe lacerations to his head, which required him to be transported to the hospital. Thus, defendant's factual basis proved he "attempt[ed] to cause serious bodily injury" to the victim. This is sufficient to establish defendant's guilt for second-degree aggravated assault.

Further, there is no evidence trial counsel's ineffectiveness at trial influenced defendant to plead guilty, or that counsel forced defendant or misled him in any way to plead guilty or misinformed him about the consequences of his plea. The record clearly shows that defendant entered his plea knowingly and voluntarily.

Defendant also argues that appellate and PCR counsel were ineffective for not seeking re-sentencing pursuant to State v. Natale, 184 N.J.458 (2005). We agree that Natalewould have applied in this case if defendant had not withdrawn his appeal. However, we are satisfied that the sentence is in accord with Natale. Defendant was extended-term eligible on each of the offenses. He received a sentence that is within the statutory range and the record supports the judge's findings of aggravating and mitigating factors. State v. Bieniek, 200 N.J.601, 608-09 (2010). The sentence is not clearly unreasonable so as to "'shock [] the judicial conscience.'" State v. Dalziel, 182 N.J.494, 501 (2005) (quoting State v. Roth, 95 N.J.334, 364-65 (1984)); see alsoState v. Cassady, 198 N.J.165, 180-81 (2009).

1 Rule 3:22-2 was amended effective September 1, 2009. The amendment does not affect this appeal.