STATE OF NEW JERSEY v. TERRY LEMON

NOT FOR PUBLICATION WITHOUT THE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.

TERRY LEMON,

Defendant-Appellant.

___________________________________

May 21, 2015

Submitted April 27, 2015 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 08-05-0526 and 09-03-0274.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison S. Perrone, Designated Counsel, on the brief).

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy A. Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Terry Lemon appeals the trial court's denial of his petition for post-conviction relief ("PCR"). We affirm.

The underlying matter involves a fatal shooting incident in Trenton on August 26, 2007. After an argument at a hair show that continued later at a bar in Ewing, defendant fired a gun into a crowd of people, killing the victim. Although the State had no eyewitnesses who saw the shooting itself that could identify defendant, they did have a statement from a cooperating witness, Terrence McBride.

McBride had seen defendant outside of the bar speaking with the victim before the shooting, perceiving that defendant was trying to start trouble. McBride began to walk back toward the bar and then heard six shots behind him. He then observed defendant running down the street and getting into the passenger side of a car that drove away. Several months later, Trenton police encountered defendant drinking a beer on a street and saw him toss a handgun toward a housing project.

The firearm was recovered and identified as a .38 caliber semi-automatic handgun, which defendant was not legally authorized to possess. Two separate indictments against defendant then issued.

Pursuant to an agreement negotiated with the State, defendant pled guilty before Judge Pedro J. Jimenez, Jr., on March 10, 2010 to the amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), downgraded from the indictment charging him with murder, and a "certain persons" handgun offense, N.J.S.A. 2C:39-7(b), on the separate indictment. Consistent with the plea agreement, the court imposed a fifteen-year sentence for the manslaughter, subject to an eighty-five percent parole ineligibility period under N.J.S.A. 2C:43-7.2, to be served concurrently with a five-year sentence on the weapons offense.

Defendant appealed his sentence, which we affirmed in an order dated December 14, 2011. We noted that the sentencing judge's reference to aggravating factor two, N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of the harm inflicted on the victim), although inappropriately cited there, was harmless, upon having considered defendant's extensive prior criminal record and the other relevant sentencing factors.

In his subsequent PCR petition, defendant alleges ineffective assistance of his plea counsel in various respects, including failing to meet with him in person before the court proceedings, failing to conduct an adequate investigation, failing to request a Wade1 hearing concerning one of the State's potential witnesses, and other alleged failures.

After considering the parties' submissions and hearing oral argument, Judge Mark J. Fleming issued on June 10, 2013 a comprehensive twenty-six-page written opinion rejecting all of defendant's claims of ineffective assistance of counsel. The judge discerned no need for an evidentiary hearing. A companion order that same day dismissed the PCR petition.

On the present appeal, defendant raises the following argument through his appellate PCR counsel

DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

Defendant also presents the following argument in a pro se supplemental brief

TRIAL COURT ERRED IN DENYING PETITION FOR POST-CONVICTION RE[L]IEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING TO ESTABLISH ALLEGED VIOLATIONS OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE ON THE RECORD.

In essence, defendant contends, both through his counsel and his pro se supplemental brief, that Judge Fleming erred in dismissing his petition and that he was at least entitled to an evidentiary hearing. We disagree, substantially for the reasons set forth in Judge Fleming's cogent and thorough opinion.

As Judge Fleming carefully pointed out in his decision, defendant repeatedly stated at the plea colloquy that he understood what he was doing, that he was satisfied with his lawyer's services, that he had an adequate time to communicate with his attorney, and that he was admitting to being the shooter. Judge Fleming also found that defendant's claim that his lawyer should have made a motion for him to withdraw the guilty plea was unavailing because, among other things, defendant showed no colorable claim of innocence and no other factors would justify allowing this matter to be belatedly reopened. See State v. Slater, 198 N.J. 145, 155-58 (2009).

Defendant received a very favorable reduction of his criminal exposure in the plea negotiations, where he could have faced a higher sentence for murder and a consecutive sentence for the "certain persons" charge. Although he claims that the State's evidence against him was weak, he presents no affidavits or certifications from witnesses that would have discounted the strength of the State's proofs. To be sure, McBride would have been subject to impeachment at trial because of his own cooperating agreement with the State and his own criminal record, but that is a common situation to encounter in the give-and-take of plea negotiations.

In sum, defendant has shown no prima facie case supporting a claim for relief under the well-settled ineffectiveness criteria of Strickland v. Washington, 466 U.S. 668, 685-88, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93 (1984). Consequently, he was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 463 (1992).

Affirmed.

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