STATE OF NEW JERSEY v. TIMOTHY MURPHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1678-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY MURPHY,

Defendant-Appellant.

_______________________________

October 24, 2012

Submitted October 9, 2012 - Decided

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 95-09-1004, 95-09-1008.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

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

PER CURIAM

Defendant, Timothy Murphy, appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Tried by a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and a lesser-included disorderly persons offense on count four. On the same day, he was also found guilty of the fourth-degree offense of certain persons not to have weapons, N.J.S.A. 2C:39-7, for which he had been separately indicted.

After granting the State's motion for a discretionary extended term, N.J.S.A. 2C:43-7, and having merged count three with count one, the judge sentenced defendant to a fifty-year prison term, with a twenty-year period of parole ineligibility. Defendant also received eighteen-month prison terms, each with a seven-month parole ineligibility period, on count two and the certain persons offense, made to run concurrent with each other and the sentence on count one.

Defendant appealed and we affirmed. State v. Murphy, No. A-2573-98 (App. Div. Jan. 20, 2000). The Supreme Court denied defendant's petition for certification. State v. Murphy, 164 N.J. 560 (2000).

Defendant filed a timely PCR petition in which he alleged that his successive trial attorneys were ineffective for failing to advise him of his "extended term" eligibility and its potential penal consequences. According to defendant, when he inquired as to his sentencing exposure if convicted, counsel informed him that "the most you could get is a twenty [year sentence] with a ten [year period of parole ineligibility], but the judge would probably only give you an eighteen [year term] with a nine [year parole disqualifier]." Had he known of his extended term eligibility, defendant claims he would have accepted the State's plea offer of an aggregate eighteen-year term with a minimum parole ineligibility period of six years. In support of his petition, defendant relies upon his PCR counsel's certification in which he reports from conversations with them that neither trial counsel remembers, either way, whether he advised defendant of his extended term exposure, although one of them stated he "must have" discussed the possibility of an extended term with defendant.

The PCR judge denied defendant's petition in a letter opinion of September 24, 2008. Noting at the outset that defendant had failed to submit a transcript of either his arraignment or pre-trial conference, the court relied on the record of the October 11, 1995 plea offer, which specifically refers to "waive extended term":

In this case, the defendant's assertions are speculative. The record indicates that a written plea offer with specific references to an extended term was given to the defendant's counsel. The record further indicates that trial counsel apparently does not recall specifically discussing extended term, but believes he must have done so. The fact that the written plea offer makes a specific reference to an extended term supports that conclusion. Counsel's post-conviction letter about the extended term motion does not at all indicate that no prior discussions about extended term took place.

On the record placed before the court by the defendant, the court cannot conclude the defendant has met his burden to establish a prima facie showing that counsel's performance was deficient. There is insufficient evidence of ineffective assistance and thus, petitioner is not entitled to post-conviction relief.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

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

B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO INFORM HIM HE COULD RECEIVE AN EXTENDED TERM IF HE WAS CONVICTED OF FIRST DEGREE ROBBERY AT TRIAL, WHICH RESULTED IN THE DEFENDANT REJECTING A PLEA RECOMMENDATION OFFERED BY THE STATE INVOLVING AN AGGREGATE 18 YEAR TERM WITH A SIX YEAR PAROLE DISQUALIFIER.

II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON THE DOCUMENTS SUBMITTED WITHOUT AFFORDING POST CONVICTION RELIEF COUNSEL THE OPPORTUNITY TO PRESENT ORAL ARGUMENT.

We find no merit in these contentions. R. 2:11-3(e)(2).

It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a prima facie claim of ineffective assistance of counsel, a defendant must do more than make bald, unsubstantiated assertions that his attorney was ineffective. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A defendant must allege specific facts that sufficiently demonstrate counsel's alleged ineffectiveness. Ibid.; see also State v. Preciose, 129 N.J. 451, 462 (1992).

Here, the only objective documentary evidence the plea form revealed that defendant was informed of his extended term eligibility and directly refuted his unsubstantiated claim to the contrary. Moreover, PCR counsel's certification, attesting to trial counsel's recollection that he "must have" discussed the matter with defendant, is strongly corroborative of the documentary proof. Conversely, defendant has produced nothing by way of pre-trial transcripts, which he has a duty to provide, Rule 2:5-3(b); Rule 3:22-6(c), in support of his contradictory, unsworn claim. And lastly, in the absence of any such record, defendant has simply failed to show how oral argument would have advanced his cause. Under these circumstances, we are persuaded that the alleged deficiency here clearly fails to meet either the performance or prejudice prongs of the Strickland test.