STATE OF NEW JERSEY v. TYRAN KELSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1619-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRAN KELSEY,

Defendant-Appellant.

____________________________________________

July 2, 2013

Submitted February 5, 2013 - Decided

Before Judges Fisher, Waugh and St. John.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 07-05-0687 and 07-09-1290.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tyran Kelsey appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

I.

We briefly summarize the relevant procedural history and the facts based on the record before us.

On May 25, 2006, a Burlington County Grand Jury indicted defendant, under Indictment No. 06-05-0639, with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and fourth-degree contempt of a judicial order, N.J.S.A. 2C:29-9(a).

On July 27, 2006, a Burlington County Grand Jury indicted defendant, under Indictment No. 06-07-1101, with first-degree attempted murder, N.J.S.A. 2C:5-1(a)(3) and 2C:11-3(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5; second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1); fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-3(f)(1); fourth-degree hindering, N.J.S.A. 2C:29-3(b)(4); and fourth-degree obstruction, N.J.S.A. 2C:29-1(a).

On January 30, 2007, a Burlington County Grand Jury indicted defendant, under Indictment No. 07-01-0147, with five counts of third-degree manufacturing, distributing, dispensing or possession with intent to distribute controlled dangerous substances, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3), and three counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1).

On May 15, 2007, a Burlington County Grand Jury indicted defendant, under Indictment No. 07-05-0687, with two counts of second-degree manufacturing, distributing, dispensing or possession with intent to distribute controlled dangerous substances, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); second-degree conspiracy to distribute controlled dangerous substances, N.J.S.A. 2C:5-2 and 2C:35-5(a)(1); and third-degree possession of controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1).

On September 11, 2007, a Burlington County Grand Jury indicted defendant, under Indictment No. 07-09-1290, with third-degree possession of controlled dangerous substances within 1000 feet of a school zone, N.J.S.A. 2C:35-7; first-degree manufacturing, distributing, dispensing or possession with intent to distribute controlled dangerous substances, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1); third-degree possession of controlled dangerous substances, N.J.S.A. 2C:35-10(a)(1); and second-degree attempt to distribute controlled dangerous substances, N.J.S.A. 2C:5-1 and 2C:35-5(a)(1).

On February 7, 2008, defendant entered into a negotiated plea that resolved all of his pending charges. At the plea hearing defendant was represented by counsel who after discussing the strong proofs against defendant, stated:

Judge, I can tell you Mr. Kelsey [isn't] happy. He's a fighter. He's a scrapper. He would love to take every one of them to trial. But it would be against the counsel of his lawyer, of his father and I think of his own good common sense. Having said those things, Judge, I think he's ready.

During the plea colloquy, defendant informed the court that he understood the consequences of pleading guilty and that he had sufficient time to discuss the matter with his attorney. Defendant acknowledged that he understood the plea agreement and he provided a factual basis for all of his guilty pleas.

Defendant was sentenced in accordance with the plea agreement. The sentencing judge found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9), and mitigating factor N.J.S.A. 2C:44-1(b)(11), applicable to each of defendant's convictions.

As a result of a plea agreement regarding all of these indictments, defendant entered guilty pleas to two counts of second-degree aggravated assault, fourth-degree contempt, first-degree CDS possession with the intent to distribute, second-degree CDS distribution, third-degree CDS distribution, and third-degree possession of a weapon for an unlawful purpose. The prison terms imposed on these convictions were ordered to run concurrently with each other and with a violation of probation from another county. As a result, defendant received an aggregate ten-year prison sentence, subject to a five year parole disqualifier. He did not file a direct appeal.

On March 21, 2011, defendant filed a PCR petition alleging ineffective assistance of plea counsel. The matter was heard before the PCR judge on May 27, 2011. In an extensive written opinion, Judge Michael Haas denied defendant's petition.

II.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE PCR COURT ERRED IN NOT GRANTING PETITIONER AN EVIDENTIARY HEARING SINCE PETITIONER WOULD BE ENTITLED TO POST-CONVICTION RELIEF WITH THE FACTS REVIEWED IN A LIGHT MOST FAVORABLE TO HIM.

A. Petitioner Received Ineffective Assistance of Counsel Because of Trial Counsel's Failure to File Appropriate Pre-Trial Motions.

B. Petitioner Received Ineffective Assistance of Counsel Because of Trial Counsel's Failure to Argue Against the Aggravating Factors Found by the Trial Court or for Appropriate Mitigating Factors.

C. Petitioner Received Ineffective Assistance of Counsel Because of Trial Counsel's Failure to Ensure that Petitioner's Sentence was Proportionate to That of His Co-defendants.

POINT II

THE PCR COURT ERRED IN BARRING PETITIONER'S ARGUMENTS REGARDING HIS SENTENCE SINCE THOSE ARGUMENTS WERE BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL.

Defendant's assertions were addressed by the PCR judge and we affirm as to those contentions substantially for the reason set forth in his opinion. We note that the PCR judge considered the arguments raised by defendant in his filing and reached the proper conclusions in denying defendant's PCR petition. We briefly add the following comments.

"[I]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Nunez-Valdez, 200 N.J. 129, 138 (2009) (quotation and citation omitted). New Jersey courts have adopted the Strickland1 two part test to establish ineffective assistance of counsel: "the defendant must show that '[defense] counsel's performance was deficient;' and . . . 'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 138-39 (quoting State v. Preciose, 129 N.J. 451, 463-64 (1992)); see also State v. Fritz, 105 N.J. 42, 58 (1987). When a claim of ineffective assistance of counsel is raised, the PCR process should begin anew if "the defendant's post-conviction relief attorney entirely failed to subject the prosecution's case to meaningful adversarial testing . . . [and] the attorney's representation of the defendant amounts to no representation at all[.]" State v. Velez, 329 N.J. Super. 128, 135 (App. Div. 2000).

We review ineffective assistance of counsel (IAC) claims de novo. State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). "Assessing IAC claims involves matters of fact, but the ultimate determination is one of law and . . . '[a] trial court's interpretations of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (alteration in original)).

Courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment" when reviewing such claims. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). A court will not overturn an otherwise valid conviction "'merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314).

Defendant did not establish a prima facie case of ineffective assistance of counsel, therefore, a hearing on defendants claim was not necessary. His arguments to the contrary are merely bald assertions.

There is no support in the record for defendant's assertion that his plea counsel was ineffective for failing to file pre-trial motions to suppress evidence or dismiss the indictments. In order to satisfy the Strickland standard when an ineffective assistance of counsel claim is based on the failure to file a suppression motion, a defendant must establish "that his Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). Defendant has failed to show that pre-trial motions would have been successful.

We further note that defendant's plea agreement resolved five open matters against him. He received the benefit of the dismissal of numerous charges against him. Moreover, defendant's sentences were made to run concurrently, as opposed to consecutively, to one another.

Finally, we agree with the PCR judge that the sentencing issues raised by defendant are the type of claims that should have been raised on direct appeal. "To permit post-conviction review of the adequacy of the sentencing judge's findings and conclusions would open the gates to an avalanche of grievances, often long after the sentence was imposed." State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

We see no reason to disturb the PCR judge's determination that defendant did not meet his burden of proving his right to relief by a preponderance of the evidence.

A

1 Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).