STATE OF NEW JERSEY v. TERRANCE TRAVERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE TRAVERS, a/k/a

TERRANCE L. TRAVERS,1

Defendant-Appellant.

___________________________

December 20, 2016

Submitted November 16, 2016 Decided

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-05-0440.

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

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

PER CURIAM

Defendant Terrance Travers appeals from the June 30, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

We derive the following facts from the record. On May 6, 2005, a grand jury indicted defendant under Indictment No. 05-05-0440 for first-degree attempted murder, N.J.S.A. 2C:5-1 (count one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three and four); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts five and six); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven).

On May 26, 2005, a grand jury indicted defendant under Indictment No. 05-05-0513 for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1) (count three); third-degree possession with intent to distribute a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-17 (count four); and second-degree possession with intent to distribute a CDS within 500 feet of a public facility, N.J.S.A. 2C:35-7.1 (count five).

On December 18, 2007, a jury found defendant guilty under Indictment No. 05-05-0440 of the lesser-included offense of first-degree aggravated assault under count one, and guilty on all of the remaining counts. The court merged count five into counts two and three, and count six into count one, and sentenced defendant on count one to a nine-year term of imprisonment with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive seventeen-year term of imprisonment subject to NERA on count two (first-degree carjacking), for an aggregate sentence of twenty-six years subject to NERA.

On March 12, 2008, defendant pled guilty under Indictment No. 05-05-0513 to count four (third-degree possession with intent to distribute a CDS within 1,000 feet of school property). The court sentenced him to a four-year term of imprisonment concurrent with his sentence on count two of Indictment No. 05-05-0440.

Defendant appealed from both convictions, but the issues raised on appeal related solely to Indictment No. 05-05-0440. We reversed defendant's convictions on counts two, three, four, and five, but affirmed his convictions on counts one, six and seven. State v. Travers, No. A-6044-07 (App. Div. July 21, 2010) (slip op. at 39). We remanded to the trial court for resentencing and retrial if the State elected to retry defendant on the reversed counts. Ibid. Our Supreme Court denied the State's petition for certification and defendant's cross-petition for certification. State v. Travers, 205 N.J. 100 (2010).

On November 7, 2011, defendant pled guilty under Indictment No. 05-05-0440 to count four (first-degree robbery) in exchange for the State's agreement to recommend a twelve-year term of imprisonment subject to NERA. At the plea hearing, defendant testified that he used force to rob the victim and was armed with a handgun during the robbery. He also testified that he understood the plea agreement, pled guilty freely and voluntarily, and no one threatened or coerced him to plead guilty.

Defendant also pled guilty to an unrelated theft charge under Indictment No. 08-07-0704. On January 6, 2012, the court sentenced him on count four of Indictment No. 05-05-0440 to a twelve-year term of imprisonment subject to NERA, to be served concurrently to any other sentence he was then serving. Regarding resentencing on the affirmed counts, the court merged count six into count one, and resentenced defendant on count one to a nine-year term of imprisonment subject to NERA concurrent to the sentence imposed on Indictment No. 08-07-0704, and concurrent to any other sentence defendant was then serving. The court also imposed a concurrent four-year term of imprisonment on count seven.

Defendant appealed his sentence under Indictment No. 05-05-0440. He argued, in part, that there was no factual basis to support his guilty plea to first-degree robbery because he did not admit to what type of weapon he used or that it was operable. We heard the appeal on our Excessive Sentence Oral Argument calendar, and affirmed. State v. Travers, No. A-2607-11 (App. Div. Sept. 27, 2012). Our Supreme Court denied certification. State v. Travers, 213 N.J. 538 (2013).

On February 8, 2013, defendant filed a PCR petition, arguing, in relevant part, that defense counsel rendered ineffective assistance by: (1) failing to adequately investigate; (2) misadvising him that he would receive the original twenty-six-year sentence if he did not plead guilty to first-degree robbery; and (3) permitting him to plead guilty to first-degree robbery without a sufficient factual basis. Defendant also argued that appellate counsel was ineffective for failing to raise these arguments on direct appeal.

In a June 30, 2014 written opinion, the PCR judge concluded that defendant failed to satisfy the two prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The judge found there was no support for defendant's claim that defense counsel failed to investigate. The judge also found the plea transcript established that defendant fully understood the plea agreement and that he was pleading guilty to first-degree robbery, and he was satisfied with the agreement negotiated by defense counsel. The judge cited N.J.S.A. 2C:15-1(b), which provides, in pertinent part, that "robbery is a crime of the . . . first degree if in the course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon." The PCR judge noted that the phrase "armed with" is not defined in the Criminal Code; however, the Court in State v. Rolon, 199 N.J. 575, 581 (2009) stated that "case law establishes that it means possession of, and immediate access to, the deadly weapon." The PCR judge concluded that defendant provide a sufficient factual basis for the plea to first-degree robbery when he admitted he was armed with a handgun during the robbery. Lastly, the PCR judge found that appellate counsel was not ineffective.

On appeal, defendant raises the following contentions

POINT I: THE PCR COURT'S DENIAL OF DEFENDANT'S PETITION FOR [PCR] MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN THE PROCEEDINGS BELOW.

A. Plea Counsel Provided Ineffective Assistance of Counsel.

1. Plea Counsel Failed to Investigate and Discover Critical Facts.

2. Plea Counsel Misinformed Defendant Regarding Material Elements of The Plea Negotiation.

3. Plea Counsel Permitted Defendant to Plead Guilty To First Degree Robbery When Defendant Never Acknowledged That He Had Possession or Immediate Access to a Handgun During the Alleged Robbery.

B. Appellate Counsel Erred To The Extent That He Failed To Present The Above Claims During The Proceedings Below.

POINT II: THE DEFENDANT SHOULD BE PERMITTED TO RETRACT HIS PLEA IN THE INTEREST OF JUSTICE.

A. [Defendant] Presented a Colorable claim of Innocence.

B. The Nature and Strength of Defendant's Reasons For Withdrawal Weigh in Favor of the Motion to Retract the Plea.

C. The Court should not give substantial weight to the third factor because defendant entered into an unknowingly plea.

D. The Withdrawal of the Plea would not Result in Unfair Prejudice to the State or Unfair Advantage to the Accused.

POINT III: THE COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING.

We decline to address defendant's contention in Point II that he should be permitted to retract his plea. Defendant did not raise this contention before the PCR judge and it does not involve the trial court's jurisdiction or a matter of public importance. State v. Robinson, 200 N.J. 1, 20 (2009). In addition, this contention could and should have been raised on defendant's direct appeal. R. 3:22-4; State v. Afanador, 151 N.J. 41, 50 (1997). Thus, we address defendant's remaining contentions.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance, material issues of dispute fact lie outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). To establish a prima facie claim of ineffective assistance of counsel, the defendant

must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.

Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).]

To set aside a guilty plea based on the ineffective assistance of counsel, "a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. R. 3:22-10; see also State v. Preciose, 129 N.J. 451, 462 (1992).

We have considered defendant's contentions in Points I and III in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons the PCR judge expressed in his written opinion. However, we make the following brief comments.

"[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Porter, supra, 216 N.J. at 353 (quoting Cummings, supra, 321 N.J. Super. at 170). Defendant failed to provide certifications demonstrating that there was discoverable evidence that would have had the likelihood of successfully rebutting the State's evidence in this case.

In addition, if an issue has been determined on the merits in a prior appeal it cannot be re-litigated in a later appeal of the same case, even if of constitutional dimension. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997). The Rule 3:22-5 bar will preclude a PCR argument if the issue is identical or substantially equivalent to the issue previously adjudicated on its merits. McQuaid, supra, 147 N.J. at 484 (citation omitted). In defendant's direct appeal of his sentence for first-degree robbery, we considered, and rejected, his argument that there was no factual basis to support his guilty plea.

Lastly, "[o]ur courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Castagna, 187 N.J. 293, 313 (2006) (quoting Preciose, supra, 129 N.J. at 460). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal." Ibid. (citing State v. Allah, 170 N.J. 269, 285 (2002)). The record was not sufficiently developed at the time of defendant's direct appeal of his sentence to permit this court to consider his claim of ineffective assistance of defense counsel. Accordingly, appellate counsel committed no error.

Affirmed.

1 Referenced in the record also as Terrance Lamont Travers.