STATE OF NEW JERSEY v. SAMMIE LEE SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0190-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMMIE LEE SMITH, a/k/a

SMITH J. HOOD, JAY SMITH,

ROBERTO SMITH, SAMMY LEE

Defendant-Appellant.

________________________________________________________________

July 6, 2011

Submitted May 17, 2011 - Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-04-0470.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

As part of a plea agreement, defendant pled guilty to three counts of Indictment No. 05-04-470-I, charging him with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(a); two counts of Indictment No. 05-07-919-I, charging him with third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(5); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); one count of Morris County Accusation No. 05-10-01462-A, charging him with fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and one count of a municipal complaint charging him with criminal mischief, N.J.S.A. 2C:17-3(a).

In providing the factual basis for the aggravated assault guilty plea, defendant stated he had a fight with the victim and started hitting him with a starter pistol. When he said he only hit the victim once, to protect himself, the court stated that he had not given a factual basis for that charge. Defendant persisted in stating he understood he was going to jail and the court replied, "You're only going to jail if you did it." Without any suggestion from the court as to what was required to provide an adequate factual basis, defendant stated, "I assaulted this man with the starter pistol. I beat him with the gun." Defendant stated, "I just want to be with my family and get this over with and take my time for what I did wrong and get home . . . ." The court again focused on the facts, asking, "What did you do to A.D. that makes you guilty of attempting to cause serious bodily injury?" Defendant replied, "I pulled the starter pistol and I started hitting him with it." Upon further questioning by the prosecutor, defendant admitted he understood that by repeatedly hitting the victim, he could cause serious bodily injury to him; that the victim started to bleed from the head; and that in the process of hitting him with the starter pistol, the pistol actually broke apart.

On March 28, 2006, the sentencing court imposed an aggregate sentence of twelve years, including an eight-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by a four-year sentence with a two-year parole disqualifier. Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence. State v. Smith, No. A-0495-06 (App. Div. June 18, 2008). The Supreme Court denied his petition for certification, 196 N.J. 598 (2008).

In November 2009, defendant filed a pro se PCR petition in which he argued that his sentence was excessive; that he received ineffective assistance of counsel; that he was forced into his plea; that he had to say things that [he] really did not do in order to have [his] plea accepted ; and that he "did not receive the same sentence [he] ple[d] to. Defendant submitted a supporting certification on or about January 10, 2010.1 Counsel later submitted a brief on behalf of defendant in supportof his PCR petition. The PCR court denied defendant's petition by order dated May 11, 2010.

Defendant presents the following issues for our consideration in his appeal.

POINT I

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF TRIAL COUNSEL

A. TRIAL COUNSEL PERMITTED, IF NOT INDUCED, DEFENDANT TO PLEAD GUILTY TO AN INADEQUATE FACTUAL BASIS REGARDING AGGRAVATED ASSAULT

B. TRIAL COUNSEL AIDED, IF NOT INDUCED, DEFENDANT TO ENTER AN INVOLUNTARY GUILTY PLEA TO AGGRAVATED ASSAULT

We are not persuaded by any of these arguments and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

The factual assertions contained in defendant's certification are primarily directed at the judge. Defendant never denied hitting the victim with a starter pistol. However, he said in his certification that he "only took the plea that day so [he] could go home and continue to be on bail!" Although he contends he "had to say things [he] did not do in order to have [his] plea accepted," and that there were no injuries, he does not specifically repudiate his admissions at the plea hearing that the victim was bleeding, that he struck him repeatedly with the starter pistol, and that the pistol broke during the assault.

The only allegation defendant made in his certification regarding his trial counsel was that he did not have enough time to become familiar with his case. However, he fails to provide any factual basis for an argument that this alleged lack of familiarity with his case resulted in any prejudice to him.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).

Affirmed.

1 Defendant did not seek post-conviction relief from his conviction and sentence for bail-jumping, a charge to which he pled guilty in April 2006. He was sentenced on that charge in July 2006 and his sentence was affirmed. State v. Smith, No. A-1660-06 (App. Div. March 8, 2007).