STATE OF NEW JERSEY v. WILLIAM MANLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5133-03T45133-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM MANLEY,

Defendant-Appellant.

_______________________________________

 

Submitted December 5, 2005 - Decided January 30, 2006

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-835-95.

Yvonne Smith Segars, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Manley was charged under a Bergen County indictment with carjacking, N.J.S.A. 2C:15-2 (count one); armed robbery, N.J.S.A. 2C:15-1 (count two); armed robbery, N.J.S.A. 2C:18-2a (count three); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); receipt of stolen property, N.J.S.A. 2C:20-7 (count six); receipt of stolen credit cards, N.J.S.A. 2C:21-6c (count seven); eluding, N.J.S.A. 2C:29-2b (count eight); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count nine); hindering apprehension, N.J.S.A. 2C:29-3b (count ten); attempted escape, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-5 (count eleven); aggravated assault, N.J.S.A. 2C:12-1b(5) (count twelve); and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count thirteen).

The trial judge dismissed the drug possession charge. The jury found defendant guilty of carjacking, robbery, burglary, receipt of stolen property, eluding, and hindering apprehension. Defendant was acquitted of possession of a handgun for an unlawful purpose, unlawful possession of a handgun, receipt of stolen credit cards, attempted escape and aggravated assault. Based on the jury's findings, the judge dismissed the charge of possession of a weapon by a convicted felon.

The trial judge determined that defendant's prior record made him eligible to be sentenced to an extended term as a persistent offender, N.J.S.A. 2C:44-3a, and subject to mandatory minimum sentencing under the Graves Act, N.J.S.A. 2C:43-6c. The judge sentenced defendant to aggregate sentences of 61 years in jail with 28 years of parole ineligibility.

Defendant appealed and, in an opinion filed July 9, 1999, we vacated defendant's conviction for receipt of stolen property and in lieu of retrial, we entered a conviction for the lesser included offense of joyriding. We also vacated defendant's conviction for hindering apprehension. We affirmed the other convictions and remanded the matter for re-sentencing. The trial judge imposed an aggregate 38 year term of incarceration, with a 19 year period of parole ineligibility. Defendant appealed and, by order filed November 8, 2000, we vacated the sentences and remanded the matter to the trial court "so that defendant may be afforded his right of allocution."

On remand, the trial judge imposed the following sentences: a 30 year term with 15 years of parole ineligibility, for carjacking; a consecutive 8 year term, with 4 years of parole ineligibility for burglary; and a concurrent 10-year term with 5 years of parole ineligibility, for eluding. Defendant appealed and, by order filed May 15, 2001, we vacated the carjacking sentence and re-sentenced defendant to 25 years of incarceraton with a 12 year period of parole ineligibility. Our decision resulted in an aggregate sentence of 33 years of imprisonment, with a 16 year period of parole ineligibility.

Defendant thereafter filed a petition for post conviction relief (PCR). Defendant asserted that he was denied the effective assistance of counsel because his trial counsel did not provide him with adequate advice concerning his sentencing exposure. Defendant also asserted that his re-sentencing counsel was ineffective because he was not sufficiently familiar with the facts to make an effective argument.

The judge filed a written opinion on May 21, 2003 in which he concluded that, although the petition had been filed beyond the time prescribed by R. 3:22-12, there were sufficient grounds to consider the petition on the merits. The judge concluded that defendant had not established a prima facie case of ineffective assistance that would require an evidentiary hearing. The judge further found that defendant had not been denied the effective assistance of counsel.

The judge filed a letter opinion dated August 26, 2003 amending his May 21, 2003 opinion. The judge further addressed defendant's claim that he had not been properly advised of his sentencing exposure when he rejected the plea offer. The judge noted that he had reviewed the transcript of the February 13, 1996 hearing concerning the plea offer. The judge stated, "The transcript reveals defendant was advised of his sentencing exposure contrary to defendant's assertion that his counsel failed to inform him." This appeal followed.

Defendant raises the following contentions for our consideration:

POINT ONE: THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED FOR AN EVIDENTIARY HEARING REGARDING DEFENSE COUNSEL'S INEFFECTIVENESS FOR NOT INFORMING DEFENDANT OF HIS SENTENCING EXPOSURE IF HE WERE CONVICTED.

POINT TWO: THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND HIS SENTENCE MUST BE VACATED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING.

We have carefully considered these contentions and thoroughly reviewed the record on appeal. We are convinced that the trial judge did not abuse his discretion when he rejected defendant's request for an evidentiary hearing and correctly found that defendant had not been denied the effective assistance of counsel. We affirm the denial of PCR substantially for the reasons stated by the judge in his written opinions dated May 21, 2003 and August 26, 2003. We add the following.

Trial courts ordinarily should grant an evidentiary hearing to resolve a claim based on the ineffective assistance of counsel "if a defendant has presented a prima facie claim in support of post conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case of ineffective assistance, a defendant must demonstrate a reasonable likelihood of success on the test established in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Preciose, supra, 129 N.J. at 463. Under the Strickland test, the defendant must show that his counsel was deficient and counsel's deficient performance prejudiced his defense. Fritz, supra, 105 N.J. at 52 (quoting from Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable." Ibid.

To establish that his attorney was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In assessing whether counsel was deficient in his representation of a defendant, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990) (quoting from Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In addition, to establish that defendant was prejudiced by the deficient performance of his attorney, defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting from Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We are satisfied that the judge did not abuse his discretion in resolving defendant's ineffective assistance claim without an evidentiary hearing. Defendant failed to show a reasonable likelihood of success on his claim. Preciose, supra, 129 N.J. at 463. Indeed, the record before the judge made clear that defendant's claim was entirely without merit.

The transcript of the February 13, 1996 status conference reflects that defendant was offered a sentence of 17 years incarceration, with a 7 year period of parole ineligibility. The judge who conducted the conference told defendant on the record that defendant was exposed to a sentence of "up to 30 years, if he goes to trial . . . because he is an extended term candidate." Defendant informed the judge that he wanted to speak with his attorney about the offer. After a break, defendant informed the judge that he had spoken with his attorney. His counsel informed the judge that defendant wanted to proceed to trial.

Defendant contends that the record fails to disclose what his counsel said to him regarding his sentencing exposure. However, the record makes plain that the judge told defendant that if he proceeded to trial and was convicted, he was eligible to be sentenced to an extended term of up to 30 years. Ultimately, defendant was sentenced to an aggregate term of 33 years, with a 16 year period of parole ineligibility. Defendant's sentence is substantially the same as the estimate provided by the judge at the February 13, 1996 conference.

In support of his appeal, defendant relies upon our decision in State v. Taccetta, 351 N.J. Super. 196 (App. Div.), certif. denied, 174 N.J. 544 (2002). In that case, the defendant asserted that he had been denied the effective assistance of counsel with regard to plea bargaining. The defendant had been acquitted of murder in federal criminal proceedings and he was concerned about the exposure he faced on State racketeering and extortion charges if he were again acquitted of murder. Id. at 199.

The defendant in Taccetta alleged that his attorney advised him that he faced sentences of five to ten years on the remaining second degree charges. We noted that the alleged advice was legally incorrect because it failed to reflect that the charges could be elevated to first degree offenses if the predicate crimes were crimes of violence and the advice failed to account for the prospect of extended term or consecutive sentencing. Ibid. The defendant therefore was exposed to sentences that were substantially longer than the five to ten year range. The defendant asserted that had he been properly advised regarding his sentencing exposure, he would have accepted the plea offer. Ibid. Moreover, trial counsel submitted a certification in which he stated that he never advised the defendant that if he was acquitted of murder, he might be sentenced to the same penalties as would have been imposed for murder. Ibid.

We held in Taccetta that the defendant made an adequate prima facie showing to warrant an evidentiary hearing on his ineffective assistance claim. We remanded the matter to the trial court so that defendant would have the opportunity

to demonstrate to the court that a favorable plea offer was made, that the advice his counsel gave him respecting his sentencing exposure if acquitted of the murder was seriously deficient in that there was a substantial disparity between the advice and the actual exposure, and that defendant would have accepted the plea offer had he been correctly advised.

[Id. at 201.]

Defendant's reliance upon Taccetta is misplaced. Here, the record plainly shows that defendant was advised by the judge of his potential exposure to a sentence of up to 30 years. His actual sentence is an aggregate 33 year term of incarceration. Here, there is no "substantial disparity" between the information provided by the judge and the actual sentence imposed. Ibid. Thus, Taccetta does not support defendant's claim that he was denied the effective assistance of trial counsel.

We also are convinced that the judge properly determined that defendant was not denied the effective assistance of re-sentencing counsel. Defendant maintains that counsel was deficient because, at the January 12, 2001 sentencing hearing, the judge imposed a 30 year sentence on the carjacking conviction and in doing so stated that the offense allegedly started with the "pointing of a weapon." Defendant contends that counsel should have objected to this statement because there was no evidence that defendant actually pointed a gun at the victim. Defendant contends that the original sentence was predicated "in large part" upon a misimpression.

However, like the trial judge, we are not convinced that defendant was in any way prejudiced by counsel's failure to object to the judge's inadvertent remark. As the record shows, we sentenced defendant on the carjacking conviction, not the trial judge. The sentence was not predicated upon a misimpression that defendant pointed a weapon at the victim when the crime was committed. The record was clear that defendant had been acquitted of armed robbery, armed burglary and the weapons charges.

 
Affirmed.

(continued)

(continued)

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A-5133-03T4

January 30, 2006