STATE OF NEW JERSEY v. TONYA R. WOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0053-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TONYA R. WOOD,

Defendant-Appellant.

___________________________________________

April 12, 2011

Submitted October 27, 2010 Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0560.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anderson Harkov, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent(Daryl A. Williams, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tonya R. Wood appeals from a February 24, 2009 order denying her petition for post-conviction relief (PCR). She asserts she made a prima facie showing that her counsel was ineffective for failing to inform her that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied to her sentence. Defendant additionally asserts that the PCR court erred by not conducting an evidentiary hearing. Based on these errors, defendant argues she should be permitted to withdraw her plea. We have considered her arguments in light of the facts and applicable law, and we affirm the order denying her petition.

Defendant worked at the Ulta Store in the Watchung Square Mall in the Borough of Watchung. On June 24, 2004, the store was robbed by three masked men. Two of the men appeared to be carrying handguns. During the police investigation, defendant admitted she purposely left the door unlocked so the robbers could enter the store. Defendant confessed to making the arrangement with her boyfriend, Troy Keets. She identified two of the three robbers as brothers, Oshea and Tysean Clark. Although defendant did not identify Keets as the third robber, after Oshea Clark was arrested, he admitted his involvement and identified Troy Keets as the third robber. Defendant received $300 as her share of the robbery proceeds.

On August 5, 2004, the grand jury returned a two-count indictment charging defendant with conspiracy to commit robbery, N.J.S.A. 2C:5-2(a), and first-degree robbery in violation of N.J.S.A. 2C:15-1(a)(2) and N.J.S.A. 2C:15-1(b). In a plea agreement, which included the promise of her cooperation at the trial of Troy Keets, defendant's first-degree robbery charge was amended to a second-degree offense. Under the agreement, the prosecutor agreed to recommend a five-year sentence with an eighty-five percent period of parole ineligibility pursuant to NERA. The sentencing court followed the recommended plea agreement denying defendant's request to be sentenced as a third-degree offender.

Defendant filed her notice of appeal with a motion to file the appeal nunc pro tunc. Her motion was denied, and the appeal was dismissed. On May 5, 2008, defendant filed for post-conviction relief. Following a hearing, the PCR court denied defendant's petition. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I: THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

POINT II: THE FAILURE OF TRIAL COUNSEL TO EXPLAIN TO DEFENDANT THAT THE NO EARLY RELEASE ACT WOULD STILL BE APPLICABLE IF SHE PLED TO SECOND DEGREE ROBBERY, DEPRIVED DEFENDANT OF HER CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We find no merit in any of these arguments.

In Point I of her appellate brief, defendant asserts that the PCR court alluded to a procedural bar, but did not decide that issue, deciding instead that it would decide the merits of defendant's petition. Under such circumstances, defendant has suffered no prejudice and the arguments raised in Point I lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Next, defendant argues her trial counsel was ineffective. It is well-settled, a prima facie claim of ineffective assistance of counsel requires defendant to show (1) counsel's performance was deficient; and (2) but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52, (1987). Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60. The standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989), superseded by statute on other grounds as recognized by State v. Cruz, 163 N.J. 403, 411 (2000). "[T]he defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007).

In reviewing the adequacy of counsel's performance relating to a defendant's entry of a guilty plea, the Court has held:

When a guilty plea is part of the equation, we have explained that [t]o set aside a guilty plea based on 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. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (quotation marks omitted).]

Here, defendant argues her counsel failed to inform her that NERA still applied to her sentence. Since she was not informed, defendant contends counsel was ineffective, and she should be allowed to withdraw her plea.

Addressing these arguments, the PCR court found defendant's claim unpersuasive because the plea form and supplemental plea form explicitly stated she faced a five-year term subject to NERA. The PCR court also noted the trial court reviewed the NERA provision with defendant on the record. Specifically, the trial judge asked defendant "[y]ou understand by statute you'll have to serve eighty-five percent of your term without parole before you become eligible for parole, correct?" Defendant answered "yes."

"[T]he decision whether to permit a defendant to withdraw his plea should 'be decided on a case-by-case basis, depending upon whether the defendant can be said to have been prejudiced by the omission.'" State v. McQuaid, 147 N.J. 464, 488 (1997) (quoting State v. Taylor, 80 N.J. 353, 363-64 (1979)).

Defendant does not argue that her trial counsel explicitly told her that NERA did not apply to her sentence. Rather, defendant argues she misunderstood the plea agreement and relied on misinformation from counsel to her detriment. However, in her testimony at the plea hearing, defendant stated she understood the plea and supplemental plea forms. Both of the plea forms clearly stated NERA applied to her sentence. At the hearing, the prosecutor stated that in exchange for a guilty plea, the State would recommend "a sentence of five years, [eighty-five] percent to be served without parole, pursuant to the No Early Release Act." Defense counsel also confirmed that he reviewed the plea agreement with defendant and her family "at length." Further, defendant admitted reading over the plea forms with her attorney and that she was satisfied with counsel's advice.

Defendant's answers during her plea and her endorsement of the plea forms do not support her contention that she misunderstood NERA's application to her sentence. Defendant briefly attended college and was a high school honor student. It is highly unlikely that she misunderstood the forms she completed and signed or the questions asked during her plea.

Furthermore, even if counsel did err by not clearly explaining NERA, the agreement is "not so overstated as to render the plea unfair." McQuaid, supra, 147 N.J. at 488 (quoting Taylor, supra, 80 N.J. at 364). Defendant concedes there is no doubt NERA applies to any sentence imposed for a second-degree robbery. In this case, defendant received a low-end sentence for a second-degree robbery charge in place of a first-degree charge. If defendant were allowed to withdraw her plea and face trial, she would still be subject to NERA and, if convicted, she would face a much longer prison term. Although "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea," State v. Slater, 198 N.J. 145, 158 (2009), defendant does not claim her innocence. Moreover, it would be unreasonable to trade a five-year term for a term between ten and twenty years. See N.J.S.A. 2C:43-6(a)(1). Therefore, even if counsel erred, it would not have made a difference in the likelihood of defendant accepting the plea. Her custodial term, if convicted, could have been more severe.

Defendant argues the PCR court erred by failing to grant an evidentiary hearing. She argues a hearing should have been granted to explore the prejudice she suffered from counsel's failure to advise her about NERA applicability. We disagree.

An evidentiary hearing for a PCR petition is not required; although the trial court has discretion to conduct a hearing if the defendant has established a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). If a defendant makes a prima facie case of ineffective assistance of counsel, then the court at PCR proceedings should allow an evidentiary hearing and make a determination on the merits of defendant's claim. Id. at 459-64. To establish a prima facie case, defendant must demonstrate a reasonable likelihood of success on the merits. State v. Marshall, 148 N.J. 89, 158 (1997). Therefore, "to establish a prima facie claim, a petitioner must do more than make bald assertions that [s]he was denied the effective assistance of counsel. [She] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

"If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (citations omitted). Courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63.

As already discussed, defendant has not made a prima facie showing of ineffective assistance of counsel. Even if she was not advised by counsel about NERA's applicability, the record shows defendant was apprised of that information on the plea forms she signed and from the judge during her plea hearing. We therefore find the PCR court properly denied her request for an evidentiary hearing.

Affirmed.