STATE OF NEW JERSEY v. FRANK L. HARDY, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK L. HARDY, III,

Defendant-Appellant.

________________________________

November 15, 2013

Submitted: November 7, 2013 Decided:

Before Judges Simonelli and Haas.

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 (Kimmo Z. H. Abbasi, 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 Frank L. Hardy, III appeals from the February 9, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Defendant was charged in seven counts of a fifteen-count Gloucester County indictment with second-degree conspiracy to commit burglary, N.J.S.A. 2C:18-2a(1), N.J.S.A. 2C:18-2b(2), and N.J.S.A. 2C:5-2 (count one); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1a(2), N.J.S.A. 2C:15-1(b), and N.J.S.A. 2C:5-2 (count three); second-degree complicity to commit burglary, N.J.S.A. 2C:18-2a(1), N.J.S.A. 2C:18-2b(1), and N.J.S.A. 2C:2-6 (count six); second-degree burglary, N.J.S.A. 2C:18-2a(1) and N.J.S.A. 2C:18-2b(1) and (2) (count seven); first-degree complicity to commit robbery, N.J.S.A. 2C:15-1a(2), N.J.S.A. 2C:15-1b, and N.J.S.A. 2C:2-6 (count eight); first-degree robbery, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:15-1b (count nine); and first-degree murder, N.J.S.A. 2C:11-3a(3) (count eleven). The charges stemmed from an armed robbery during which defendant went through the pockets of, and took money and drugs from, one of the two victims while one of his three co-defendants held a gun to the victim's head. The co-defendant then shot and killed the second victim.

Defendant entered an open guilty plea to counts six and eight in exchange for the State's agreement to dismiss all the other charges and to recommend a sentence of a minimum of fifteen years with a cap of twenty-two years, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In accordance with this plea agreement, the trial judge sentenced defendant to an aggregate eighteen-year term, subject to NERA, with a five-year period of parole supervision upon release.

Defendant appealed his sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed. The Supreme Court denied defendant's petition for certification. State v. Hardy, 194 N.J. 269 (2008).

Defendant filed a pro se PCR petition, arguing that he entered the plea agreement under duress; the record did not support a finding of accomplice liability; and the trial judge did not properly consider the aggravating and mitigating factors in determining his sentence. Assigned counsel argued in his letter brief that defendant's trial counsel rendered ineffective assistance by: (1) negotiating a sentence with a base of fifteen years; (2) failing to argue for the minimum sentence of fifteen years; (3) assuring defendant he would be sentenced to fifteen years subject to NERA if he pled guilty; and (4) failing to point out to the trial court that an eighteen-year NERA sentence required defendant to serve more than fifteen years before he was eligible for parole.

In a February 9, 2011 written opinion, Judge M. Christine Allen-Jackson concluded that defendant failed to satisfy the first prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient. With regard to defendant's claims regarding his sentence, the judge found that trial counsel effectively negotiated a favorable plea agreement for defendant, raised appropriate mitigating factors, and argued that defendant be sentenced at the bottom of the range. The judge further found that the transcript of the plea proceeding reflected that the NERA requirements were carefully explained to defendant and he testified he understood these requirements. Because we previously rejected defendant's arguments concerning his sentence on direct appeal, the judge also found that these claims were barred by Rule 3:22-5.1

The judge also found that defendant's other arguments lacked merit. Because defendant testified he fully understood all of the terms of the plea and that no one had "force[d] or threaten[ed]" him to accept the terms of the plea, the judge found no support in the record for defendant's claim that he entered the plea agreement under duress. Defendant admitted that he and his three co-defendants planned the armed robbery of the victims. Therefore, the judge found that was an ample factual basis to support the charges to which defendant pled. This appeal followed.

On appeal, defendant raises the following contentions:

[POINT] ONE

THE PCR COURT ERRED IN DENYING [DEFENDANT] AN EVIDENTIARY HEARING EVEN THOUGH [DEFENDANT] PRESENTED A PRIMA FACIE [CASE] OF INEFFECTIVE ASSISTANCE OF COUNSEL.

[POINT] TWO

[DEFENDANT] INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the two-prong test set forth in Strickland. Id. at 463. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Allen-Jackson in her well-reasoned February 9, 2011 written opinion.

1 Rule 3:22-5 provides that a "prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction . . . or in any appeal taken from such proceedings."