STATE OF NEW JERSEY v. GREGORY TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY TAYLOR,

Defendant-Appellant.

______________________________________________

December 26, 2013

Submitted October 8, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 00-09-1166 and 99-08-1166.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gregory Taylor appeals from the December 15, 2010 Law Division order denying his petition for post-conviction relief (PCR). Having reviewed the record in light of the applicable law, we affirm.

In March 2001, a jury found defendant guilty of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(d); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); two counts of second-degree kidnapping, N.J.S.A. 2C:13-1(b); third-degree criminal restraint, N.J.S.A. 2C:13-2; third-degree criminal trespass, N.J.S.A. 2C:18-3; two counts of first-degree robbery, N.J.S.A. 2C:15-1; and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). Defendant was also subsequently found guilty of second-degree possession of a weapon by a person previously convicted of certain crimes, N.J.S.A. 2C:39-7. On November 29, 2001, defendant was sentenced to an aggregate term of seventy-six years of imprisonment with thirty-eight years of parole ineligibility.

The charges stemmed from an incident whereby defendant placed a seventeen-year-old boy in a headlock outside of a residence, held a gun to his head, and demanded money from him. Defendant, while still holding a gun to the boy's head, kicked open the door to the residence, and demanded money from the boy's aunt. The boy's aunt denied having any money, and defendant left the residence with the boy. The police apprehended defendant outside of the residence, searched the property, and found the gun. They also searched defendant after his arrest and found heroin. Defendant was given Miranda1 warnings, and gave a statement admitting to attempting to rob the boy of drugs at gun point, and then grabbing the boy and taking him to the back of the house.

Defendant appealed his conviction and sentence and raised the following contentions:

POINT I: THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE ISSUE OF IDENTIFICATION. (NOT RAISED BELOW).

POINT II: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW).

POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL.

POINT IV: THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING FLIGHT. (NOT RAISED BELOW).

POINT V: THE TRIAL COURT ERRED IN RULING THAT ALL OF THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY. (PARTIALLY RAISED BELOW).

POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND, IN SOME RESPECTS, ILLEGAL IN NATURE.

POINT VII: THE 10 YEAR TERM WITH THE 5 YEAR PAROLE DISQUALIFIER IMPOSED ON INDICTMENT NO. 99-08-01166-I IS UNCONSTITUTIONAL SINCE IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.

[State v. Taylor, No. A-5317-01 (App. Div. May 3, 2005) (slip op. at 4-5).]

We affirmed defendant's conviction and sentence on May 3, 2005. Ibid. Our Supreme Court denied defendant's petition for certification. State v. Taylor, 184 N.J. 212 (2005).

Defendant filed a pro se petition for PCR on October 14, 2005. Counsel for defendant filed a brief in support of the PCR on March 13, 2009. Defendant raised the following arguments in his pro se petition and subsequent certification: (1) trial counsel only met with defendant at court appearances in the holding area, and did not discuss procedure or a coherent defense strategy; (2) trial counsel only discussed and reviewed discovery in the courtroom holding area in front of other inmates; (3) trial counsel failed to file a timely Wade2 motion; (4) trial counsel failed to adequately participate in a charge conference regarding a cross-racial identification jury instruction; (5) trial counsel failed to investigate defendant's alibi witness; (6) trial counsel failed to advise defendant of a plea offer of fifteen years; (7) trial counsel failed to inform defendant that he may be subject to Megan's Law, N.J.S.A. 2C:7-2(b)(2); (8) trial counsel failed to secure favorable testimony from three potential witnesses; (9) appellate counsel failed to raise ineffective assistance of trial counsel arguments, failed to raise a lesser included offense argument, and prepared an inaccurate brief.

Counsel for defendant raised the following points in the supplemental brief:

POINT I: THE DEFENDANT'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.

POINT II: THE DEFENDANT HAS PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A: Trial Counsel was Ineffective as he Failed to Properly Prepare for the Suppression Hearing.

POINT III: THE DEFENDANT HAS PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

On July 20, 2010, Judge Scott J. Moynihan held an evidentiary hearing on the petition and heard testimony from defendant and his trial counsel. Defendant's trial counsel testified that he had presented the fifteen-year plea offer to defendant, but defendant rejected it as too harsh and wanted to go to trial.

Defendant testified that he had received the fifteen-year plea offer from his attorney, but thought he had more time to accept the offer. When he saw his attorney at the next court hearing, defendant alleged that he told his attorney that he wanted to take the plea, but the State had changed their offer to a twenty-year sentence. Defendant testified that he had sent his attorney two letters telling him he wanted to take the plea.

On cross-examination, defendant admitted that the draft letter on the back of the plea agreement form accurately reflected a letter he sent to his attorney about the plea. In the letter, defendant rejected the plea offer because it was not appropriate for the crimes he committed and asked his attorney to get a plea offer with a lesser sentence. Defendant maintained that he later sent a second letter indicating that he wanted to plead guilty because he was facing several other charges.

Judge Moynihan issued a comprehensive written decision denying defendant's petition on December 2, 2010, and entered an order memorializing the denial on December 15, 2010. The judge concluded that defendant's ineffective assistance of counsel claims failed the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge thoroughly considered all of defendant's contentions and found defendant had not proven his counsel's performance was deficient or that any deficiency had resulted in prejudice to defendant.

Specifically, Judge Moynihan found that defendant's trial counsel presented the original plea offer to defendant in a timely manner, and defendant did not accept it. The judge based this finding on discrepancies in defendant's testimony as to when he first received the plea approval form. Additionally, defendant acknowledged drafting the letter to trial counsel before the final pre-trial hearing on the back of the plea offer form, which stated that he was not satisfied with the fifteen-year plea offer.

Furthermore, defendant's trial counsel testified credibly that defendant wanted to go to trial. According to the judge, this assertion was supported by defendant's conduct at the final pre-trial hearing where defendant turned down the State's then current offer of a twenty-year sentence, made no request to accept the fifteen-year offer, and asserted that he wanted to go to trial. Thus, Judge Moynihan concluded that trial counsel was not ineffective with respect to presenting the plea offer to defendant.

This appeal followed.

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

POINT I: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL: TRIAL COUNSEL FAILED TO FAIRLY PRESENT THE DEFENDANT WITH THE PLEA OFFER MADE TO HIM IN SEPTEMBER OF 1999 WHICH HE WOULD HAVE ACCEPTED; DEFENDANT WAS MISLEAD INTO BELIEVING HE HAD TIME TO ACCEPT THE OFFER, BUT PLEA OFFER WAS REVOKED AND OFFER [WAS] RAISED PRIOR TO DECISION [BEING] MADE ON WHETHER OR NOT TO ACCEPT IT.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Id. at 460.

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

This standard also applies in the context of guilty pleas, where attorney competence is required, and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012); State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012).

Where the ineffective advice led to the rejection of a plea offer, and the prejudice alleged is having to stand trial, the defendant must show that "but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court . . . , that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than . . . [actually] imposed." Lafler, supra, 566 U.S. at __, 132 S. Ct. at 1385, 182 L. Ed. 2d at 407.

A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

We must give deference to the PCR judge's fact findings based on witness testimony. State v. Nash, 212 N.J. 518, 540 (2013). "In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Ibid.

In the present matter, Judge Moynihan made detailed factual findings that were amply supported by sufficient credible evidence in the record. We perceive no basis in the record to disturb the judge's findings that trial counsel properly and timely presented the plea offer, which was turned down by defendant. See Nash, supra, 212 N.J. at 540. Accordingly, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorney's performance was lacking. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

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

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).