STATE OF NEW JERSEY v. GARLAND L. BISHOP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3363-07T43363-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARLAND L. BISHOP,

Defendant-Appellant.

_________________________________

 

Submitted March 8, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-09-1007, 03-09-0961 and 03-09-0955.

Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent

(Sara B. Liebman, Assistant Prosecutor, of counsel; Kimberly Donnelly, on the brief).

PER CURIAM

Defendant Garland Bishop appeals from the denial of his petition for post-conviction relief regarding his conviction and sentence under three indictments arising out of three armed robberies. Indictment No. 03-09-00955 arose out of the robbery of a gas station in Fanwood on September 30, 2002. Indictment No. 03-09-01007 arose out of the robbery of a Burger King in Plainfield on October 4, 2002. Indictment No. 03-09-00961 arose out of the robbery of a CVS in Scotch Plains on October 5, 2002. Two codefendants were also involved in these three robberies.

Defendant's guilty pleas were taken on December 6, 2004. On September 23, 2005, his motion to withdraw the pleas was denied, and he was sentenced. At sentencing, the trial court found aggravating factor three, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); aggravating factor six, defendant's prior record and seriousness of convicted offense, N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The trial court did not find any mitigating factors.

Defendant's case thereafter appeared on our excessive sentencing calendar, and we remanded the case back to the trial court for resentencing on two of the indictments. Defendant was thereafter resentenced in accordance with the remand. As a result of these events, defendant currently stands convicted and sentenced on the three indictments as follows.

On Indictment No. 03-09-01007, defendant pled guilty to count one, first degree robbery, N.J.S.A. 2C:15-1, and count three, third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(a). The trial judge sentenced defendant to twenty years of imprisonment with an eighty-five percent parole disqualifier on the robbery count and a flat five years on the weapons count.

On Indictment No. 03-09-00961, defendant pled guilty to count one, second degree robbery, N.J.S.A. 2C:15-1. Although defendant was originally sentenced to twenty years in state prison with an eighty-five percent parole disqualifier on this count, on remand, defendant received the reduced sentence of ten years with a period of eighty-five percent parole ineligibility.

On Indictment No. 03-09-00955, defendant pled guilty to first degree robbery, N.J.S.A. 2C:15-1. On resentencing, defendant received a term of imprisonment of twenty years, with an eighty-five percent parole disqualifier.

The sentences on the three indictments run concurrently.

After resentencing, defendant then filed this petition for post-conviction relief, which was denied by the trial court without an evidentiary hearing. Defendant now appeals that decision, raising the following issues:

POINT I

DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO MAKE A TIMELY MOTION FOR A MIRANDA HEARING.

A. TRIAL COUNSEL'S FAILURE TO MAKE A TIMELY MOTION FOR A MIRANDA HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

B. TRIAL COUNSEL'S FAILURE TO FILE A TIMELY MOTION FOR A MIRANDA HEARING PREJUDICED DEFENDANT.

POINT II

DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO OBJECT TO THE INADEQUATE FACTUAL BASIS FOR DEFENDANT'S PLEA (not raised below).

A. TRIAL COUNSEL'S FAILURE TO MAKE A TIMELY OBJECTION TO THE FACTUAL BASIS FOR INDICTMENT THE PLEA CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

B. TRIAL COUNSEL'S FAILURE TO FILE A TIMELY OBJECTION TO THE FACTUAL BASIS FOR THE CHARGES PREJUDICED DEFENDANT.

POINT III

DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO OBJECT TO THE ILLEGAL SENTENCE AND FAILURE TO PRESENT ANY MITIGATING FACTORS ON BEHALF OF DEFENDANT THEREBY EXPOSING DEFENDANT TO AN UNREASONABLE TERM OF YEARS.

A. TRIAL COUNSEL'S FAILURE TO PRESENT ANY MITIGATING FACTORS, ARGUE AGAINST AGGRAVATING FACTORS, OR OBJECT TO THE ILLEGAL SENTENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

B. TRIAL COUNSEL'S FAILURE TO PRESENT ANY MITIGATING FACTORS, ARGUE AGAINST AGGRAVIATING FACTORS, OR OBJECT TO THE ILLEGAL SENTENCE PREJUDICED DEFENDANT.

In reviewing a trial court's ruling on a PCR petition, we are not bound by the trial court's legal conclusions, although we must accord deference to the factual findings of the trial court provided they are "supported by adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)), cert. denied, 545 U.S. 1145,, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Defendant claims that his constitutional rights were violated because his trial counsel was ineffective in a number of respects. Post-conviction relief is appropriate where a defendant's substantial constitutional rights were violated in the conviction proceedings. R. 3:22-2(a). Claims of ineffective assistance of counsel implicate a defendant's constitutional right to counsel under both the federal and state constitution, (1984), Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), and are properly raised in post-conviction relief proceedings. See State v. Preciose, 129 N.J. 451, 460 (1992) (stating that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding").

A defendant's constitutional right to counsel is violated where "counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction." State v. Fritz, supra, 105 N.J. at 58. To establish a claim of ineffective assistance of counsel, defendant must show that his attorney's performance was so deficient that "counsel was not functioning as the 'counsel' guaranteed" by the constitution and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. at 693, 698.

Here, defendant contends that his trial counsel was ineffective for a number of reasons, including a failure to make a timely motion to suppress defendant's statement on the basis that defendant "lacked the requisite state of mind to [consent] to the custodial interrogation." He contends that if his statement had been suppressed, he would not have pled guilty. He also argues that defense counsel was ineffective for failing to object to defendant's guilty pleas on the basis that the pleas were not supported by an adequate factual basis. In addition, he contends that his counsel was ineffective by failing to assert mitigating factors on defendant's behalf and to argue against the aggravating factors at his sentencing.

After a careful review of the record and the arguments of counsel, we find no merit to any of defendant's claims. R. 2:11-3(e)(2). With respect to the claim that counsel should have made a motion to suppress defendant's statement, we note that to be successful on this claim, defendant must be able to satisfy the Strickland test and show that his Fourth Amendment claim is meritorious. State v. Fisher, 156 N.J. 494, 501 (1998). This he cannot do. He has set forth no facts to establish that in all reasonable probability a motion to suppress would have been successful. Our close review of the transcript of defendant's pleas reveals a factual basis for all of his pleas. We reject defendant's argument that defense counsel erred in failing to argue mitigating factors and failing to dispute the aggravating factors because defendant has not identified any mitigating factors that counsel should have presented nor does he identify any arguments that should have been made to counter the aggravating factors.

Affirmed.

 

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A-3363-07T4

March 31, 2010