STATE OF NEW JERSEY v. HAROLD WORTHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5964-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAROLD WORTHY,

Defendant-Appellant.

_______________________________

December 18, 2012

Submitted November 14, 2012 - Decided

Before Judges Lihotz and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 04-06-0481.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Harold Worthy appeals from the Law Division's January 4, 2011 order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel in fully explaining the terms, conditions and consequences of entering into a negotiated plea agreement, pleading guilty to the first-degree charges of complicity to commit armed robbery, N.J.S.A. 2C:15-1a(2), 2C:15-1b, 2C:2-6 and aggravated manslaughter, N.J.S.A. 2C:11-4a, an amended charge from felony-murder included in the indictment. On appeal defendant argues:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED, AND THE DEFENDANT'S GUILTY PLEA AND SENTENCE VACATED, BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED FROM PLEADING GUILTY TO A CRIME HE DID NOT ADMIT TO OR COMMIT WAS VIOLATED.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT ESTABLISHED THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST, OR IN THE ALTERNATIVE, THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING.

(A) POST-CONVICTION RELIEF SHOULD BE GRANTED BECAUSE TRIAL COUNSEL WAS INEFFECTIVE.

(B) THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

(A) THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, RIGHT TO A FAIR TRIAL AND TO DUE PROCESS OF THE LAW UNDER THE STATE AND FEDERAL CONSTITUTIONS AND RECEIVED AN ILLEGAL SENTENCE SINCE DEFENDANT RECEIVED A GROSSLY DISPARATE TERM OF INCARCERATION THAN HIS CO-DEFENDANTS.

(B) THE CUMULATIVE EFFECT OF THE GROUNDS FOR POST-CONVICTION RELIEF IDENTIFIED BY DEFENDANT WARRANT VACATION OF HIS CONVICTION AND SENTENCES AND THE GRANT OF A NEW TRIAL.

We have considered defendant's arguments in light of the record and the applicable law. We affirm.

These facts are taken from the record on appeal. Defendant and his three co-defendants were indicted regarding events surrounding two January 26, 2004 armed home invasions resulting in the death of one of the occupants. Defendant was charged with eleven of the fourteen charges in the indictment. The negotiated agreement provided defendant would plead to two counts in the indictment, and also provide video-taped testimony and cooperate in the prosecution of his co-defendants. The State agreed to dismiss the remaining charges and to recommend an aggregate sentence of twenty-five years, subject to the 85% period of parole ineligibility required by No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant's three co-defendants also negotiated and accepted plea agreements. They pled to lesser charges than did defendant, which resulted in lesser sentences for those offenses. Specifically, co-defendant Frank Leroy Hardy, III, was the first to plead, entering guilty pleas to second-degree complicity to commit armed burglary, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2, and first-degree complicity to commit armed robbery, N.J.S.A. 2C:15-1, for which he was sentenced to an aggregate term of eighteen years subject to NERA. Co-defendant Tyron Joseph Tann next pled guilty to second-degree conspiracy to commit armed burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2, for which he was sentenced to ten years imprisonment. Defendant then pled guilty. Finally, co-defendant Joseph Paige, Jr., who was a juvenile when the incident occurred, pled guilty to second-degree complicity to commit armed burglary, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2, and was sentenced to nine years subject to NERA.

Defendant moved for reconsideration of his sentence, asserting his sentence was disparate from that imposed on his co-defendants. The court denied the motion, principally because defendant discharged the gun when confronted by an occupant of the apartment the group invaded, causing his death.

Defendant himself filed a petition for PCR alleging trial counsel was ineffective because he had not provided defendant with a copy of Hardy's criminal history and failed to explain co-defendant's past crimes could be used to impeach his credibility; he also noted the disparity in the sentences of the two men. Additionally, defendant alleged he was denied due process because counsel did not fully explain the consequences of the guilty plea, specifically stating the plea form shows no response to questions 5(e) through 11. Consequently, he was unaware the court could impose a $75 fine for the Safe Neighborhood Services Fund and $30 for the Law Enforcement Officers Training and Equipment Fund, and that a DNA sample would be collected. Also, defendant claimed he was not told about the NERA consequences of his plea, argued the factual basis recited failed to support the conviction, and was not advised regarding his right to appeal. Defendant asserted he would not have pled guilty had counsel fully informed him of these consequences. Defendant also claimed motion counsel was ineffective because he failed to advise defendant of his right to appeal the adverse ruling.

Judge M. Christine Allen-Jackson reviewed defendant's PCR petition, which she denied without conducting an evidentiary hearing, finding "there [wa]s absolutely no merit" to defendant's arguments. First, because question 12 of the plea form required two pages to record the charges that the State agreed to be dismissed, the prosecutor used duplicate pages, marked as "page 2 of 3D" and "page 2A of 3D." Every question included on the page was fully answered on page 2A, if not on page 2. Consequently, defendant's claim with respect to the omitted answers is wholly unfounded.

Second, addressing the suggestion that the factual basis presented during his plea was insufficient to support his conviction, the judge considered that specific evidence of the victim's death was not offered, nevertheless, defendant was indicted for murder and it was undisputed the victim died after being shot by defendant during the crimes.

Third, the judge considered the claim of disparity in sentencing between him and his co-defendants. She noted Tann and Paige did not enter the apartment with defendant and Hardy, but stayed outside; defendant discharged his weapon multiple times; Hardy did not shoot the victim. Judge Allen-Jackson found defendant "[wa]s not on equal footing with the co-defendants" and that lack of sufficient similarity in their respective conduct failed to support a claim of disparity. She noted defendant's sentence was within the sentencing guidelines and supported by an analysis of applicable aggravating and mitigating factors. Moreover, she found there were no "invidious or arbitrary actions by the prosecutor in negotiating the pleas offer[ed]."

Finally, turning to the other claims of ineffective assistance of counsel, the PCR judge rejected them determining the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as applied in State v. Fritz, 105 N.J. 42, 58 (1987), was not met and no deficiencies warranted vacating the plea entered. This appeal followed.

"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). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (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 such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing Preciose, supra, 129 N.J. 462), certif. denied, 162 N.J. 199 (1999). Rather, 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. "To 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 Strickland[, supra], 466 U.S. [at] 694, 104 S. Ct. [at] 2068, 80 L. Ed 2d [at] 698[.]" Preciose, supra, 129 N.J. at 463 (alteration in original). 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.

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). In the context of a request to vacate a guilty plea, a defendant must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

Defendant argues the factual basis could not support his conviction for aggravated manslaughter but rather second-degree manslaughter. We reject this contention as lacking merit. R. 2:11-3(e)(2).

"Manslaughter," N.J.S.A. 2C:11-4a and b, occurs when the actor "consciously disregards a substantial and unjustifiable risk" of death, N.J.S.A. 2C:2-2b(3); it is aggravated manslaughter when done "under circumstances manifesting extreme indifference for human life." N.J.S.A. 2C:11-4a; see State v. Ramseur, [] 106 N.J. [123,] at 270 [(1987)]. It is the first degree crime of aggravated manslaughter if the risk is a probability as opposed to a possibility; otherwise, it is a second degree crime. State v. Curtis, 195 N.J. Super. 354, 364 (App. Div.), certif. denied, 99 N.J. 212 (1984).

[State v. Breakiron, 108 N.J. 591, 605 (1987).]

Defendant clearly explained he and co-defendants went to the victim's apartment to commit a robbery; he was armed with a .45 handgun; when he entered the apartment he drew his gun; the victim moved toward defendant so he discharged his weapon, directly toward the victim, and fired several times. The number of shots fired, aimed at the victim, at close range occurred "under circumstances" and evince conduct which manifests "extreme indifference for human life." The probability of death incrementally increased with the number of bullets fired into the victim.

We additionally reject defendant's contention the PCR court erred in failing to conduct an evidentiary hearing to consider the many claims of ineffective assistance of counsel. As we noted, evidentiary hearings are necessary to determine the merits when a defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In our review, we find no basis establishing counsel's efforts were ineffective.

As noted by Judge Allen-Jackson, the augmented plea form contained defendant's responses to every question. Moreover, the transcript includes full discussions regarding the ramifications of the plea, including mandatory fines, and NERA's requirements; the restrictions and conditions of the plea agreement, including the State's right to proceed to trial in the event of an appeal or defendant's failure to cooperate as agreed; and the possibility a sentence upon conviction following trial would include a period of parole ineligibility of thirty years, rather than the twenty-one set forth in the plea agreement. Defendant stated he understood all the agreement provisions, had time to review each of them with counsel, executed and initialed each question of the plea form, and was satisfied with counsel's legal representation. Despite the conditions in the agreement, the sentencing judge advised defendant of his appellate right.

Finally, PCR is not warranted based on defendant's claim of a disparity in sentencing. We reject this claim substantially for the reasons expressed by the motion judge, who considered and denied defendant's motion for reconsideration of his sentence, and Judge Allen-Jackson, who again reviewed the issue when considering defendant's petition for PCR.

We conclude defendant has not expressed a basis to conclude counsel was ineffective or that defendant was prejudiced by errors during the plea, sentencing, or motion proceedings.

A