STATE OF NEW JERSEY v. ABDUL HAKIM TILLERY

NOT FOR PUBLICATION WITHOUT THE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.

ABDUL HAKIM TILLERY,

Defendant-Appellant.

_______________________________

December 14, 2015

Submitted May 4, 2015 Decided

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-09-1278.

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

Frederic M. Knapp, Morris County Prosecutor, attorney for respondent (Paula C. Jordao, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant appeals from the Law Division's denial, without a hearing, of his first petition for post-conviction relief (PCR). He argues his appellate counsel was ineffective because counsel failed to argue the sentencing court improperly relied on two aggravating factors. According to defendant, had counsel made that argument, we would have vacated his sentence and remanded for re-sentencing. He believes the PCR court viewed the recommended sentence in defendant's plea agreement as binding on the sentencing court, so that even if the aggravating factors were not considered, defendant would have received the same sentence. We disagree with defendant's understanding of the PCR court's decision. We affirm.

Defendant is currently serving an eight-year prison sentence as a result of his conviction after pleading guilty to first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2), pursuant to a written plea agreement. See State v. Tillery, A-5716-08 (App. Div. April 10, 2012).1 In the agreement, the State recommended the court sentence defendant to an eight-year term, consistent with a second-degree offense, subject to an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2.

At his sentencing, defendant's counsel argued against the court relying on aggravating factor one, N.J.S.A. 2C:44-1(a)(1) ("The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner."), and aggravating factor three, N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit another offense."), because there was "nothing inherent in this particular armed robbery that ma[de] it more heinous than any other armed robbery," and nothing in defendant's background to suggest he was "any more of a risk to commit another offense than anybody else," as defendant had "no prior contact whatsoever . . . with the criminal justice system."

Despite counsel's arguments, the court found aggravating factors one and three applied. Before making its findings with respect to those factors, the court noted defendant's youth twenty-one years of age at the time of sentencing and that he had no prior criminal record. The court understood those facts supported the State's reason for recommending defendant be sentenced to a mid-range, second-degree term, instead of facing twenty-years imprisonment for his first-degree crime. However, the court found the seriousness of the crime and its impact on the victims warranted application of aggravating factor one. In determining aggravating factor three applied, the court, relying on the nature of the first-degree charge, stated "the fact that [his] judgment was so poor and the mistake so great" established that defendant posed a risk of re-offending.

Defendant appealed his conviction, arguing only that the trial court improperly denied his motion to suppress certain evidence. We rejected that argument and affirmed his conviction in an unpublished opinion. See Tillery, supra, slip op. at 42.

Our written opinion addressed the appeals of both defendant and his co-defendant. Unlike defendant, his co-defendant challenged the sentencing court's reliance on aggravating factors one and three. We agreed with his co-defendant's argument as to aggravating factor one and rejected it as to factor three, but disagreed that our decision should result in the co-defendant being re-sentenced. We stated

[Co-defendant] notes the court incorrectly applied aggravating factor one. We agree.

In applying aggravating factor one, the judge stated despite the use of an imitation gun, the armed robbery had the same effect upon the victims who believed the weapon was genuine. However, this ignored that the use of the weapon elevated the conduct from a second-degree offense to a crime of the first-degree. Therefore, the additional duplication of that factor in sentencing was error. See State v. Pillot, 115 N.J. 558, 564 (1989) (holding a court may not "double-count the use of a fire arm as an aggravating factor" in armed robbery). The judgment of conviction must be amended to delete application of aggravating factor one.

[Co-defendant] also maintains the judge incorrectly applied aggravating factor three, suggesting his lack of a criminal record obviates the risk of re-offense. He also minimizes the need for deterrence, stating "nothing specific about [the conduct] . . . raises a particular need to deter." We disagree.

Having been convicted of a prior disorderly persons offense, [co-defendant's] conduct escalated to armed robbery, suggesting as noted by the trial judge, "his judgment was so poor and the mistake was so great" it evinces a disregard for the law, resulting in a likelihood for re-offense.

. . . .

Overall, despite the error in applying aggravating factor one, we discern no basis to disturb the imposed sentence. Excluding the noted error, the sentencing court explicated the reasons for imposing the term of incarceration, made an appropriate "qualitative assessment," which is supported by the record, and the imposed term aligned with the recommendation in the plea agreement. We conclude the court did not abuse its discretion and the sentence is neither unduly harsh nor unreasonable in light of the circumstances of the crime for which defendant pled guilty.

[Tillery, supra, slip op. at 38-40.]

In defendant's ensuing PCR petition, he argued his appellate attorney was ineffective because he failed to raise his co-defendant's arguments that the sentencing court improperly relied on aggravating factors one and three. In response to defendant's petition, Judge Robert J. Gilson denied the application and stated the court's reasons in a comprehensive thirteen-page written decision.

In his decision, the judge acknowledged the State agreed defendant's judgment of conviction should be amended to delete aggravating factor one, but concluded that, like his co-defendant's sentence, there was no basis to believe an appellate court would find a likelihood that defendant would receive a different sentence without aggravating one or that we would have concluded aggravating factor three did not apply. The PCR judge determined that, even assuming appellate counsel should have argued those points, we would still have affirmed defendant's conviction and sentence. The judge relied upon our opinion regarding the co-defendant's appellate argument on the same points and concluded that, had appellate counsel argued for re-sentencing, "we know that an appeal of that issue would not have changed the sentence . . . [because] [t]he Appellate Division did not reverse the sentence of co-defendant."

As a result, the judge concluded that, even assuming counsel's performance was deficient, defendant could not demonstrate any prejudice resulting from appellate counsel's failure to raise the same arguments made by his co-defendant. The judge ordered, however, that defendant's judgment of conviction be amended to delete the reference to aggravating factor one.

On appeal defendant argues

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE APPELLATE LEVEL.

We have considered defendant's argument in light of our review of the record and the applicable legal principles. We affirm, substantially for the reasons stated by Judge Gilson, but remand this matter to the Law Division for the sole purpose of entering an amended judgment of conviction deleting reference to aggravating factor one.

Because the PCR court did not conduct an evidentiary hearing, we review the "factual findings and legal conclusions" de novo. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). To establish a prima facie claim of ineffective assistance of counsel, a "defendant must show that counsel's representation fell below an objective standard of reasonableness" and, as a result, he was prejudiced. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (establishing standard for ineffective assistance of counsel claim), reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); see State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard). In other words, he must show "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In considering a claim under the first prong, the court must show "extreme deference" in assessing defense counsel's performance, as there is "a strong presumption that [it] falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). We assess defense counsel's actions on direct appeal just as we would at any other stage of adjudication. See State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987).

While we agree with defendant's observation that the sentencing court was not bound by the State's recommendation as to a sentence,2 we disagree with his contention interpreting the PCR judge's opinion as suggesting a belief that, even if the matter was remanded for resentencing, the sentencing court was bound by the State's recommendation so defendant would still receive the bargained-for sentence.

Judge Gilson viewed our earlier decision as a clear indication of our opinion that the sentencing judge was permitted to rely on aggravating factor three, and appreciated the limited impact of our determination that aggravating factor one should not apply. The judge correctly determined that, had defendant's appellate counsel raised the same argument regarding sentencing as his co-defendant, we still would not have disturbed his sentence and would have found the sentencing judge correctly performed his function, as he did during the co-defendant's sentencing, with the exception of misapplying aggravating factor one, which we found to be of no moment.

We conclude Judge Gilson properly analyzed Strickland's second prong and determined that, even if defendant's appellate counsel's assistance was ineffective, defendant did not suffer any prejudice as a result.3

Affirmed.

1 The details surrounding defendant's arrest and conviction are discussed in the cited opinion affirming defendant's conviction on direct appeal. They need not be repeated here.

2 "Our jurisprudence makes clear that the State cannot insist on a term in a plea agreement that would vitiate the court's ability to exercise discretion in sentencing." State v. Hess, 207 N.J. 123, 151 (2011).

3 Defendant contends that, had the matter been remanded for resentencing, he surely would have been treated differently than his co-defendant, whose criminal record consisted of one disorderly person's offense. We find no merit to this argument. R. 2:11-3(e)(2). Suffice it to say we do not believe there was any likelihood this fact would have made a difference because, as we stated in our earlier opinion, "the trial judge considered [co-defendant] as a first offender" for sentencing purposes. See Tillery, supra, slip op. at 38.