STATE OF NEW JERSEY v. TYHEEM STEWART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2076-08T42076-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYHEEM STEWART,

Defendant-Appellant.

______________________________________________________

 

Submitted March 17, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 03-07-0684 and 02-07-0855.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecu-tor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, defendant seeks our review of an order denying his petition for post-conviction relief. We affirm.

The record reveals that, in 2003, defendant pled guilty to two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), and two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), in Indictment No. 03-07-0684. Pursuant to a plea agreement, the State recommended an aggregate custodial term of seventeen years. Defendant was sentenced to concurrent fifteen-year terms, with an 85% period of parole ineligibility, on the kidnapping convictions, and concurrent seven-year terms, with a three-year period of parole ineligibility, on the weapon convictions. The remaining charges were dismissed.

Defendant appealed, arguing only that the sentence was excessive. We affirmed. State v. Stewart, No. A-5244-05T4 (App. Div. February 6, 2007). The Supreme Court denied defendant's petition for certification. 192 N.J. 480 (2007).

Defendant filed a petition for post-conviction relief (PCR) on August 8, 2007, arguing that his trial attorney was ineffective within the meaning of the Sixth Amendment because the attorney: pressured him into pleading guilty; did not file a motion to suppress evidence; and would not discuss the case with him. The PCR judge denied this application without conducting an evidentiary hearing.

Defendant appealed the denial of his PCR petition, arguing:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING ON ALL THE ISSUES TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSIS-TANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. DEFENDANT-PETITIONER SEEKS RELIEF FROM THE JUDGMENT ENTERED ON DECEMBER 5, 2003 ON THE BASIS THAT HIS ENTRY INTO THE PLEA WAS INVOLUNTARY.

C. COUNSEL PRESSURED DEFENDANT-PETI-TIONER INTO PLEADING GUILTY.

D. COUNSEL DID NOT FILE AND LITIGATE A MOTION TO SUPPRESS.

E. COUNSEL WOULD NOT DISCUSS THE MERITS OF THE CASE WITH DEFENDANT-PETITIONER.

As the PCR judge correctly observed, defendant's current arguments that he was pressured, coerced or uninformed at the time he pled guilty is simply belied by defendant's contrary statements during the plea hearing. Defendant acknowledged at that time that he had not been forced to plead guilty, that no one made threats or promises to induce him to plead guilty, that he had sufficient time to converse with his attorney, that his attorney answered all questions, and that he was satisfied with the attorney's services. The PCR judge properly found defendant's contrary self-serving statements as insufficient to support a prima facie claim of the ineffective assistance of counsel. We find defendant's arguments in this regard, as well as all his other arguments, to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

The parties acknowledge that defendant also pled guilty at the same time to one count of third-degree receiving stolen property as charged in Indictment No. 02-07-0855. The plea transcript reveals that the State recommended a three-year prison term to run concurrent with the prison term imposed in Indictment No. 03-07-0684. The record on appeal does not include the indictment or judgment of conviction so the final disposition of that matter is not clear to us.

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A-2076-08T4

March 31, 2010