STATE OF NEW JERSEY v. ANTHONY MAJOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6277-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY MAJOR,

Defendant-Appellant.

______________________________________

July 29, 2013

Submitted July 24, 2013 Decided

Before Judges Reisner and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-07-2272.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Anthony Major appeals from an order entered by the Law Division on November 8, 2010, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Indictment No. 06-07-2272 with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count four). On October 10, 2007, defendant pled guilty to all of the charges. The State agreed to recommend a custodial term not to exceed seven years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant was sentenced on November 26, 2007. The trial court sentenced defendant on count one to a term in the second-degree range, pursuant to N.J.S.A. 2C:44-1(f)(2), to a seven-year term of incarceration subject to NERA. The court merged count two with count three. On count three, the court sentenced defendant to a concurrent five-year term, and on count four the court imposed a concurrent, eighteen-month term.

On February 8, 2008, defendant filed a motion for reduction of his sentence. The trial court denied the motion, and defendant appealed, challenging the sentence on the ground that the court failed to advise him of the NERA consequences of his plea. With the State's agreement, we remanded the matter to the trial court for a hearing. State v. Major, No. A-3786-07 (App. Div. Oct. 21, 2009).

Defendant re-negotiated his plea and on February 5, 2010, pled guilty to count one, as amended to charge second-degree robbery. The State agreed to recommend a custodial term of up to six years, subject to NERA, and to dismiss all remaining counts of the indictment. The court then sentenced defendant to a six-year term of incarceration, subject to NERA.

Thereafter, defendant filed a PCR petition, alleging that he was denied the effective assistance of counsel. He claimed that his attorney failed to argue that he should not have been subject to NERA because his offense was not robbery but rather theft from a person. Defendant also argued that he presented a prima facie case of ineffective assistance of counsel and should be afforded an evidentiary hearing on those claims. In addition, defendant argued that his petition was not procedurally barred.

The PCR court considered the petition on November 8, 2010, and placed its decision on the record that date. The court agreed that defendant's PCR petition was not procedurally barred and concluded that an evidentiary hearing was not required because defendant did not present a prima facie case of ineffective assistance of counsel. The court found that defense counsel was not deficient for failing to argue that defendant's actions constituted theft from the person rather than robbery. The court noted that the record showed that defendant entered a liquor store and told the store's employees to give him money. The court pointed out that the employees opened the cash register and gave defendant money, based on their belief that defendant had a gun. The court found that there was sufficient evidence indicating that defendant committed a robbery by threatening the store's employees or purposefully placing them in fear of immediate bodily injury.

The court concluded that defense counsel's decision not to argue that defendant's actions constituted theft was reasonable in light of the facts. The court additionally concluded that defendant had not established that, but for counsel's allegedly deficient handling of the case, he would not have pled guilty and would have insisted on going to trial.

The court entered an order dated November 8, 2010, denying PCR. This appeal followed. Defendant raises the following arguments for our consideration:

POINT I

DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS POST-CONVICTION RELIEF CLAIMS.

POINT III

NO PROCEDURAL BARS TO POST-CONVICTION RELIEF PRECLUDED RELIEF FOR DEFENDANT.

We are satisfied from our review of the record that the PCR court correctly determined that defendant's petition was not procedurally barred, defendant was not denied the effective assistance of counsel, and an evidentiary hearing was not required on the petition. We affirm the court's order denying PCR substantially for the reasons stated by the court in the decision placed on the record on November 8, 2010. We add the following brief comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court for consideration of such claims raised under the New Jersey State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on a claim of ineffective assistance of counsel, a defendant first must show that his attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant also must show that counsel's deficient performance prejudiced his defense. Ibid.

The Strickland test applies to challenges to guilty pleas based on the ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). Thus, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). The defendant also "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

We are satisfied that the PCR court correctly determined that defendant failed to satisfy both prongs of the test for ineffective assistance of counsel. As the court found, defense counsel reasonably chose not to argue that defendant's actions constituted theft because the evidence indicated that defendant committed a robbery, as defined in N.J.S.A. 2C:15-1(a)(2). Moreover, defendant did not show that, but for the alleged error, he would not have pled guilty and would have insisted upon going to trial.

We are also satisfied that the PCR court correctly found that an evidentiary hearing was not required on the petition because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.