STATE OF NEW JERSEY v. TROY TOULSON

NOT FOR PUBLICATION WITHOUT THE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.

TROY TOULSON,

Defendant-Appellant.

________________________________________________________________

February 14, 2014

Submitted January 14, 2014 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-11-2393.

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

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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

Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) to (2), and other offenses and pled guilty pursuant to a plea agreement to one count of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). He provided the following factual basis for his plea:

COURT: You seek to enter a guilty plea to an amended count one of the indictment. On the 12th of September of 2004 were you in Atlantic City?

DEFENDANT: Yes, I was.

COURT: And did you have in your possession a .38 caliber handgun?

DEFENDANT: Yes, I did.

COURT: Did you point that at the head of James Mays?

DEFENDANT: Yes, sir.

COURT: Did you discharge that gun?

DEFENDANT: Accidentally.

COURT: Well, you accidentally discharged it while it was pointed at his head, is that correct?

DEFENDANT: That's correct.

COURT: And that when the gun discharged, it killed him, is that correct?

DEFENDANT: That's correct, Your Honor.

COURT: And would you agree that that constituted a manifested reckless indifference to the value of his life when you pointed that loaded gun at his head?

DEFENDANT: Yes, sir.

Defendant was sentenced to twenty years imprisonment with an eighty-five percent parole disqualifier and did not file a direct appeal. He filed a PCR petition in April 2011 and now appeals from its denial. Defendant argues he was denied effective assistance of counsel because his attorney failed to argue that the factual basis for his guilty plea failed to establish the required elements for a conviction of aggravated manslaughter. He argues further that the PCR court erred in failing to grant him an evidentiary hearing on his petition. We disagree.

N.J.S.A. 2C:11-4(a)(1) provides that aggravated manslaughter is committed when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." Defendant contends that, because he stated in his plea colloquy that the firearm discharged "accidentally," a conviction for aggravated manslaughter cannot stand. However, defendant admitted that he pointed a .38 caliber handgun at the victim's head and further acknowledged he "manifested reckless indifference to the value of [the victim's] life when [he] pointed that loaded gun at his head[.]" Defendant's arguments that this colloquy failed to establish recklessness on his part or a causal relationship between his recklessness and the victim's death lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (l987). Because defendant's claim of ineffective assistance rests upon the contention that counsel failed to take action that would have been futile, he is unable to show that counsel made the requisite egregious error or that he suffered any prejudice. See State v. Roper, 378 N.J. Super. 236, 237-38 (App. Div.), certif. denied, 185 N.J. 265 (2005). Having failed to present prima facie evidence of ineffective assistance of counsel, he was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).