STATE OF NEW JERSEY v. TERRY PARKER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

TERRY PARKER,

Defendant-Appellant.

__________________________________

May 29, 2014

Submitted May 7, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-06-0972.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Terry Parker appeals the Law Division's October 11, 2012 order denying his petition for post-conviction relief (PCR). We affirm.

In June 2006, Parker was charged with the following offenses in a nineteen-count indictment: eleven counts of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a) (counts one, two, four, five, six, eleven, twelve, thirteen, fourteen, sixteen, and seventeen); two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b) (counts three and fifteen); three counts of third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (counts seven, nine, and nineteen); and three counts of second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (counts eight, ten, and eighteen).

InAugust 2006, he accepted a negotiated plea agreement that required himto pleadguilty tocount five, first-degree aggravated sexualassault; countnine, third-degreeaggravated criminalsexual contact; and count sixteen, first-degree aggravated sexual assault. Each of those counts involved a different victim, all of whom were minors. The State agreed to dismiss the remaining counts and to recommend concurrent sentences of incarceration for twenty years, subject to an eighty-five-percent period of parole ineligibility, for the first-degree counts.1 Parker, however, reserved the right to argue for an aggregate sentence of fifteen years for those counts, also subject to an eighty-five-percent period of parole ineligibility.

On January 26, 2007, Parker received the recommended sentence of twenty years on the two first-degree counts and four years on the third-degree count, all concurrent. He appealed the sentence, and we affirmed. State v. Parker, No. A-5215-06 (Mar. 4, 2008). The Supreme Court denied Parker's petition for certification. State v. Parker, 196 N.J. 85 (2008).

Parker filed his PCR petition in November 2011. It was subsequently supplemented by his assigned counsel. In his petition, Parker raised issues related to his sentence: the weighing of the aggravating and mitigating factors, the legality of the minimum period of parole ineligibility, the length of the sentence, and the disparity in plea offers and sentencing among counties. In the supplemental brief, assigned counsel raised the adequacy of Parker's representation by trial counsel and also argued that he should be allowed to withdraw his plea, citing State v. Slater, 198 N.J. 145 (2009).

The PCR judge heard oral argument on October 10, 2012. Although Parker was present and spoke during the argument, he was not placed under oath. In addressing the judge, Parker emphasized his belief that his trial counsel did not advise him adequately, as a consequence of which he asserted that he did not make a fully informed decision to plead guilty.

The following day, the PCR judge issued an eighteen-page letter opinion explaining his reasons for denying relief and dismissing Parker's petition. He concluded (1) that Parker's sentence-related claims were procedurally barred by Rule 3:22-5 because they were or could have been raised on direct appeal, (2) that Parked failed to present a prima facie case of ineffective assistance of counsel, and (3) that Parker was not entitled to withdraw his guilty plea because he had failed to satisfy the requirements of Slater. This appeal followed.

Parker raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF COUNSEL'S FAILURE TO COMPREHENSIVELY REVIEW ALL RELEVANT DISCOVERY IN CONJUNCTION WITH THE STATE'S CASE WITH HIS CLIENT, COMBINED WITH HIS FAILURE TO ADEQUATELY REVIEW WITH THE DEFENDANT THE PRACTICAL CONSEQUENCES OF HIS GUILTY PLEA, THE DEFENDANT ENTERED INTO A PLEA AGREEMENT WHEN, HAD HE BEEN FULLY COGNIZANT OF ALL RELEVANT INFORMATION, HE WOULD HAVE ELECTED TO PROCEED TO TRIAL RATHER THAN ENTERING INTO A PLEA AGREEMENT.

"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(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial 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." "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" that "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 constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

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, a 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) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt," Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Finally, a defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63.

Having reviewed the issues raised on appeal in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We affirm essentially for the reasons set forth by Judge James M. Blaney in his thoughtful and thorough written decision.

Affirmed.

1 The first-degree sentences were also subject to five years of parole supervision following release and community supervision for life.