STATE OF NEW JERSEY v. TROY BRASBY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00944-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY BRASBY,

Defendant-Appellant.

________________________________________________________________

October 21, 2013

Submitted October 1, 2013 Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-04-1374.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Troy Brasby appeals from the January 28, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant argues that his counsel was ineffective for not appealing his nine-year sentence subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, which was the maximum permitted pursuant to the plea agreement. We affirm.

On September 18, 2004, when defendant was sixteen years old, he shot the victim in his lung, liver and leg with a nine millimeter automatic handgun. The victim survived the injuries.

Defendant was waived to the Law Division, N.J.S.A. 2A:4A-26, and charged in a six-count indictment with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a), and other crimes in connection with the shooting. Defendant had been adjudicated delinquent on two prior occasions. He entered a plea of guilty to the second count of the indictment charging second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). As part of his plea agreement, defendant waived his right to appeal. R. 3:9-3(d).

On appeal defendant raises the following issue:

POINT I: THE LOWER COURT ERRED IN DENYING MR. BRASBY AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIM THAT HIS TRIAL ATTORNEY WAS INEFFECTIVE FOR ADVISING HIM NOT TO PURSUE AN APPEAL.

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. 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, 57-58 (1987).

In cases brought by a defendant who has entered a guilty plea, the first prong is met where the defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Defendant alleges that due to his attorney's negligence he did not pursue an appeal on the grounds that his sentence was excessive. This issue is without sufficient merit to necessitate discussion in a written opinion. R. 2:11-3(e)(2). As the judge explained to defendant the day he pled guilty, had defendant appealed, the State could have withdrawn the plea agreement. R. 3:9-3(d); State v. Sainz, 107 N.J.283, 294 n.6 (1987).

The sentence imposed was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. State v. Bieniek, 200 N.J. 601, 608-09 (2010). Neither did it violate the principle set forth in State v. Natale, 184 N.J. 458, 487 (2005) (eliminating presumptive sentences). Thus, an appeal of the sentence would not only have risked reinstatement of the original charges, but would not have been successful on the merits.