STATE OF NEW JERSEY v. KENDALL FERGUSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1180-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENDALL FERGUSON,

Defendant-Appellant.

_______________________________

June 20, 2012

Submitted April 24, 2012 - Decided

Before Judges Yannotti and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3559.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kendall Ferguson appeals from the order of the Law Division denying his application for post-conviction relief (PCR). We affirm.

On November 16, 2006, an Essex County Grand Jury returned an indictment charging defendant with purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1)(2) (count one); unlawful possession of a firearm, a "handgun", N.J.S.A. 2C:39-5(b) (count two); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). Pursuant to a plea bargain, on April 2, 2007, defendant retracted his initial plea of not guilty and pled guilty to count one, amended to aggravated manslaughter, N.J.S.A. 2C:11-4a, and count two, unlawful possession of a handgun. In exchange for the plea, the State agreed to amend count one, as noted, and recommended that any custodial sentence not exceed seventeen years, subject to an eighty-five percent parole ineligibility period and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On May 29, 2007, the court imposed a sentence of sixteen years, subject to a NERA period of parole ineligibility, on count one and five years on count two, to run concurrently. The State moved to dismiss count three and the court granted the motion.

Defendant appealed the sentence and claimed that it was excessive. We affirmed. State v. Ferguson, No. A-0883-07 (App. Div. Feb. 5, 2009). The Supreme Court denied certification. State v. Ferguson, 199 N.J. 515 (2009).

Defendant filed a pro se PCR petition in July 2009 and counsel was appointed to represent him. Defendant's PCR petition was premised on the argument that his trial counsel was ineffective. Defendant claimed that his first trial counsel, a public defender, had "offered [him] a plea of seven years with an eighty-five percent parole disqualifier which [he] verbally accepted." However, according to defendant, the following week a more senior public defender began to represent him and advised him that "the most he could do for [defendant] was to offer . . . twenty-two years with an eighty-five percent parole disqualifier which [he] rejected." Defendant claimed his new counsel told him to "forget" prior counsel's representations about a different plea bargain.

The judge who accepted defendant's plea and imposed sentence heard defendant's PCR application. The judge asked defendant's counsel if "any documentation, [such as] a plea offer form" confirmed defendant's understanding that he had been offered a plea bargain based upon seven years imprisonment, and counsel replied, "No. Just my client's argument."

The judge denied the application and explained that while "[t]here may have been a discussion as to what [plea offer counsel] thought he could get",

[t]he fact is that an offer was ultimately made which, pursuant to the rules of court, was reduced to writing. That offer insured that the defendant would not be convicted of first-degree murder, which would carry potentially a life sentence. The plea offer was reduced to writing. It was signed by Mr. Ferguson. That plea offer states that the State was recommending a sentence of seventeen years with eighty-five percent under the No Early Release Act.

I presided over this plea and I asked Mr. Ferguson several questions. I asked him, did he hear what the Prosecutor and his attorney . . . had to say about how the matter is being resolved. He answered, "Yes, I did, Your Honor."

"Did [counsel] explain all of this to you," I asked.

He answered, "Yes, Your Honor."

"Explain everything?"

He answered, "Yes."

And I asked him, "Is it true, do you now wish to plead guilty to aggravated manslaughter and unlawful possession of a weapon?" He said, "Yes."

Now, there's further colloquy between the defendant and myself about his allocution where he makes a statement in response to a question that I asked.

I asked, "Why are you pleading guilty to these charges?"

Mr. Ferguson responded, "Because it's the right thing to do. I know what happened was partially my fault, and I just have it weighing on my conscience." . . .

The court added that at sentencing defendant's expression of remorse was considered and, given the circumstances of the plea, defendant's counsel was not "ineffective." This appeal followed.

Defendant makes the following arguments on appeal:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

After reviewing the record and the briefs in light of the applicable law, we conclude that none of these arguments has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Ibid. (citations omitted). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Merely raising a claim of ineffective assistance of counsel does not, however, entitle a defendant to an evidentiary hearing. Statev. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective-assistance-of-counsel claim is within the trial court's discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63.

Further, "[t]o establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Stricklandv. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L.Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v.Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Guided by these principles, we note that in support of his PCR petition, defendant alleges nothing more than a statement that his first public defender "offered [him] a plea of seven years" which he was inclined to accept. There is no claim or suggestion that such a plea had been offered by the State or that such an offer had been reduced to a writing as required by Rule 3:9-1(b). Moreover, at no time during the plea hearing or sentencing did defendant advert to the alleged earlier plea offer. In fact, defendant conceded his understanding of the plea, and stated that his counsel had answered all his questions and that he was satisfied with counsel's representation.

Affirmed.