STATE OF NEW JERSEY v. TERRY ALLEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2172-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY ALLEN,

Defendant-Appellant.

________________________________________________

July 2, 2013

Submitted March 19, 2013 - Decided

Before Judges Waugh and St. John.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-12-2165.

Joseph E. Krakora, Public Defender, attorney for appellant (Frederick P. Sisto, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Monalisa A. Tawfik, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Terry Allen appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

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

On December 4, 2008, a Hudson County Grand Jury returned Indictment No. 08-12-2165 charging defendant with first-degree armed robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3).

The indictment arose out of an incident which occurred on July 30, 2008, when defendant assaulted and robbed a victim at knife point in Union City. During the course of the robbery, the victim's daughter observed defendant assaulting her father. Defendant fled the scene and police officers located defendant hiding on a fire escape on the third floor of the building where they were directed by the witness. Defendant was arrested and positively identified by the victim's daughter. Defendant's robbery was also captured by a video security system in the victim's home. At the time of the incident, defendant was on probation from an earlier conviction.

Pursuant to a negotiated plea agreement, defendant pled guilty to first-degree armed robbery. In exchange, the State agreed to recommend defendant be sentenced within the second-degree range and further agreed to limit its requested sentence to a seven-year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to recommend that any sentence imposed on the anticipated violation of probation run concurrently with the sentence imposed on the robbery. On the sentence date, defendant failed to appear and a warrant was issued for his arrest. After remaining a fugitive for a year, on July 30, 2010, defendant was sentenced to a seven-year term of imprisonment, subject to NERA. The court also terminated defendant's probation on the earlier conviction, without improvement.

On October 14, 2010, defendant filed a PCR petition. In a June 2, 2011 written opinion, the PCR judge denied defendant's petition. It is from this order that defendant appeals.

II.

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

POINT I

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE MR. ALLEN ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS DUE TO PLEA COUNSEL'S FAILURE TO PROVIDE HIM WITH DISCOVERY, FAILURE TO REVIEW DISCOVERY WITH HIM, AND FAILURE TO DISCLOSE THAT HIS ULTIMATE SENTENCE WOULD NOT BE OFFSET BY JAIL CREDITS EARNED AS A CONDITION OF PROBATION.

Certain principles guide our consideration of the issues before us on appeal. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). 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. "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).

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. 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.), 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.

"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 v. 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).

Here, defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation, . . . 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)).]

Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

Defendant asserts that his trial counsel was ineffective by failing to provide him with discovery and failing to disclose that his sentence would not be offset by jail credits earned on his prior conviction. In addressing defendant's contention of ineffective assistance of counsel, the PCR judge stated:

The record here also established that the defendant's decision to waive his right to trial and enter a guilty plea was his voluntary decision. . . . In light of the overwhelming evidence of his guilt, the lack [of] any defense to the charge, and his sentence exposure upon conviction, his statement that he "wanted to challenge the charges at trial" is incredible. In combination with the absence of a claim of innocence or a plausible defense in this petition his statement amounts to nothing but a bald assertion.

Finally, counsel cannot be considered ineffective for properly advising a client regarding the likely outcome of a trial. The defendant has advanced no basis upon which this court could conclude the advice he received was incorrect or failed to meet the standard required of competent counsel.

We see no reason to disturb the decision of the PCR judge. When asked by the judge, before pleading guilty, whether he had enough time to discuss his case, including his rights and defenses, with his attorney, defendant answered "Yes." This belies defendant's assertion that plea counsel was ineffective for failing to provide and discuss the discovery with him.

There were strong proofs against defendant, including an eye-witness and video tape surveillance. He also had three prior indictable convictions. Defendant, extended-term-eligible, pleaded guilty to a first-degree crime, and received a favorable sentence in the second-degree range. Given these factors there is not a reasonable probability that, but for counsel's alleged errors, defendant would not have pled guilty and would have insisted on going to trial. Nunez-Valdez, supra, 200 N.J. at 139.

We are satisfied from our review of the record, that defendant failed to make a prima facie showing of ineffectiveness of plea counsel under the Strickland/Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.

Affirmed.