STATE OF NEW JERSEY v. TERRANCE CHRISTOPHER BOYD

NOT FOR PUBLICATION WITHOUT THE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.

TERRANCE CHRISTOPHER BOYD,

Defendant-Appellant.

__________________________________________

November 24, 2015

Submitted November 2, 2015 Decided

Before Judges Accurso and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-05-1019.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian M. Kayed, Assistant Prosecutor, on the brief).

PER CURIAM

Terrance Christopher Boyd (defendant) appeals from the denial of his application for post-conviction relief (PCR). We affirm substantially for the reasons expressed by Judge Mitzy Galis-Menendez in her opinion that rejected the claim of ineffective assistance of counsel without an evidentiary hearing.

In September 2007, defendant shot to death one person and wounded another. He was arrested, indicted and then pled guilty in June 2009 to two charges: first degree aggravated manslaughter, a charge which had been amended from first degree murder, and second degree aggravated assault. Four other charges were dismissed as part of a plea agreement. He was sentenced on the manslaughter charge to twenty-four years of incarceration with an 85% minimum mandatory period of parole ineligibility. On the aggravated assault charge, he was sentenced to eight years to run concurrently with the manslaughter sentence. Defendant appealed the conviction and sentence, which we affirmed in May 2013. State v. Boyd, No. A-6288-11 (App. Div. May 8, 2013) (slip op. at 1). This PCR application followed. Defendant is not challenging his underlying plea.

The defendant raises the following issue here

DEFENDANT SHOULD BE ENTITLED TO A RE-SENTENCE BECAUSE HIS PLEA ATTORNEY WAS INEFFECTIVE AT HIS SENTENCE HEARING.

The petition for PCR is the State's analogue to the federal writ of habeas corpus. State v. Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992). It is not a substitute for direct appeal nor a vehicle to relitigate the underlying merits. Preciose, supra, 129 N.J. at 459. The defendant must establish by a preponderance of the evidence his right to PCR. Ibid.; see R. 3:22-2 (setting forth four grounds for PCR).

A claim of ineffective assistance of counsel generally is raised in the post-conviction context because often such claims cannot be fairly adjudicated in the prior proceeding. Preciose, supra, 129 N.J. at 460. Here, the defendant alleges ineffective assistance of counsel for failure to raise mitigating factors at the sentencing hearing.

An accused has the right to effective assistance of counsel under both the Sixth Amendment to the United States Constitution, Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), and under Article I, 10 of the New Jersey Constitution. State v. Nash, 212 N.J. 518, 541 (2013); State v. Fritz, 105 N.J. 42, 58 (1987). To show a prima facie case of ineffective assistance, defendant must satisfy a two-prong test. First, defendant must show that counsel made an error "'so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). This is an objective standard of reasonableness that must be evaluated at the time of counsel's conduct. Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95. The quality of counsel's conduct must be considered in light of the "totality of counsel's performance . . . ." State v. Castagna, 187 N.J 293, 314 (2006). Counsel's representation must be reasonable under prevailing professional norms. Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Second, defendant must show that the deficient performance of counsel prejudiced the defendant. Id. at 687. To make out a prima facie case, there must be "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" O'Neil, supra, 219 N.J. at 611 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). A reasonable probability means something "'sufficient to undermine confidence in the outcome' of the proceeding." Ibid.

The trial court has the discretion whether to grant an evidentiary hearing on PCR. R. 3:22-10. Generally if a prima facie case is shown, an evidentiary hearing should be conducted if there are facts relied on by defendant that are not in the record. Preciose, supra, 129 N.J. at 462. "Bald assertions" are not enough to obtain a hearing on a claim of ineffective assistance of counsel. State v. Porter, 216 N.J. 343, 355 (2013). The defendant "'must allege facts sufficient to demonstrate counsel's alleged substandard performance.'" Ibid. (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). We affirm the trial judge through application of these principles and largely for the reasons set forth in her decision.

Defendant contends his counsel was ineffective because he should have highlighted defendant's age, that he had a tenth grade education and recently had been hospitalized for PCP consumption. In sentencing, a trial court weighs relevant aggravating factors, N.J.S.A. 2C:44-1(a), and "those mitigating factors that are 'fully supported by the evidence.'" State v. Blackmon, 202 N.J. 283, 296-97 (2010) (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). N.J.S.A. 2C:44-1(b) sets forth thirteen mitigating factors that a trial court may consider during sentencing.

Certainly in some cases, the failure to argue mitigating evidence may rise to ineffective assistance of counsel. For instance, in State v. Hess, 207 N.J. 123, 153 (2011), the Court found ineffective assistance of counsel where, because of a restrictive plea agreement, counsel did not raise any mitigating evidence. However, here, the record shows counsel did ask to reduce the proposed sentence even though none of the mitigating factors listed in the statute appeared to apply. Counsel specifically raised that defendant was eighteen, and that the crime, although "senseless," resulted from a mixture of drugs, immaturity and a false sense of insult. Counsel referenced defendant's remorse and his wish, shortly after the shooting, to attend church. Defendant's attorney asked to reduce the proposed twenty-four year sentence because defendant was eighteen. This then is not a case like Hess where no mitigating factors were mentioned. That counsel was unsuccessful in obtaining a reduction merely reflected the absence of any actual or consequential mitigating evidence.

Further, defendant did not show any facts that would support a reasonable probability the outcome would have been different had counsel urged additional mitigating factors. State v. Gaitan, 209 N.J. 339, 351 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Defendant has not shown prejudice because he has not asserted any facts to show that any mitigating factor should have been applied to reduce his sentence. Having then failed to meet either prong under Strickland, his claim of ineffective assistance of counsel fails.

Defendant next claims his attorney should have requested sentencing under the Young Adult Offenders Act (YAOA), N.J.S.A. 2C:43-5. That Act provides

Any person who, at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex . . . . This section shall not apply to any person less than 26 years of age at the time of sentencing who qualifies for a mandatory minimum term of imprisonment without eligibility for parole, pursuant to subsection c. of N.J.S. 2C:43-6.

[N.J.S.A. 2C:43-5.]

The trial court did not err in rejecting this claim. Defendant pled guilty to first degree aggravated manslaughter in violation of N.J.S.A. 2C:11-4(1) and to second degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). Under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, these convictions require a minimum period of mandatory parole ineligibility constituting 85% of the sentence imposed. YAOA expressly provides that the particular crimes to which defendant pled guilty are exempted from YAOA's provisions. N.J.S.A. 2C:43-5. Further, in State v. Corriero, 357 N.J. Super. 214, 217 (App. Div. 2003), we held that YAOA cannot be used for sentencing when the conviction involves a crime to which NERA applies.