STATE OF NEW JERSEY v. TANNY MILLER

NOT FOR PUBLICATION WITHOUT THE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.

TANNY MILLER,

Defendant-Appellant.

May 6, 2014

Submitted April 1, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-02-0200.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tanny Miller appeals the August 5, 2011 denial of his petition for post-conviction relief (PCR). We affirm for the reasons set forth by Judge Scott Moynihan in his August 4, 2011 written decision.

On June 18, 1999, defendant was sentenced in accordance with a plea agreement to concurrent terms as follows: forty-five years, subject to twenty-two-and-a-half years of parole ineligibility, on an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count one); ten years with five years of parole ineligibility on an amended charge of second-degree kidnapping, N.J.S.A. 2C:13-1 (count six); twenty years subject to ten years of parole ineligibility on six counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts seven, fourteen, fifteen, eighteen, twenty-five, and twenty-six). The remaining counts of the thirty-two-count indictment were dismissed.

On December 14, 2006, the matter was remanded for reconsideration of defendant's sentence pursuant to State v. Natale, 184 N.J. 458, 488, 495-96 (2005), and State v. Thomas, 188 N.J. 137, 153-54 (2006), as a result of defendant's appeal on the excessive sentence calendar. R. 2:9-11. Our order provided that "[o]n remand defendant may move to withdraw his plea." Defendant was resentenced to the same terms on March 9, 2007. On July 27, 2007, defendant's motion to vacate his guilty plea was denied.

Defendant again unsuccessfully appealed his sentence to the excessive sentence panel. In that order, issued April 5, 2010, we found that contrary to his contentions on appeal, defendant was made aware of the Graves Act consequences of his sentence, both as a result of the language explaining it in the plea form which he signed, as well as the plea colloquy with the judge. This PCR petition followed.

Defendant proffers a Plainfield police report attached as an exhibit to his PCR petition as the summary of the relevant facts. The report states that the evening of November 15, 1996, while walking with Dylan George and Corey Owens, Tyshawn Jones saw two men in a black Neon vehicle that he believed had robbed him the prior month. He threw a rock through the rear window of the car.

Approximately fifteen minutes after the vehicle left the area, Jones saw the car's two occupants walking towards him, George, and Owens. As they approached, one of the car's occupants whom Jones later identified as defendant, began to fire in their direction; he, George, and Owens ran. Jones and George informed police, who had been called to the scene almost immediately, that they were sure that Owens had been injured. Later, the police found Owens' dead body. George also told police that he was sure that Owens had been the victim of another robbery some weeks prior, although he had likely not reported it. George too had been robbed earlier by the same assailants. The officer located an earlier police report which described the suspect's vehicle as being a black Neon.

Jones gave police the license plate number of the Neon. The police identified the owner, a woman who lived in Newark. The officer noted he was later advised that the police in Newark "had detained two persons with the vehicle." The report goes on to state that Bobby Clayton and defendant had been identified by George, and taken to the Plainfield police headquarters. There, photo arrays were shown to Jones, who identified defendant as the shooter. The report also states that George had been taken to Newark and identified the suspects as not only the shooters but the persons who committed the earlier robbery.

The manner in which George identified the suspects is not specified; in his brief, defendant asserts it was a show-up. No record reference supports the assertion.

The version of the evening's events contained in the presentence report includes defendant's denial of involvement in the shooting. That version differs from the narrative contained in the police report.

In his decision, the PCR judge initially found that the five-year bar contained in Rule 3:22-12(c) prohibited consideration of defendant's petition. Furthermore, defendant did not allege excusable neglect other than the claim that his matter was pending appeal "from 1999 to 2005 and no one informed him that he had to file an application within the five-year period." Nonetheless, Judge Moynihan considered and rejected defendant's claims on their merit, including the claim that it was ineffective assistance of counsel for defendant's attorney not to have requested a Wade1 hearing. He also rejected defendant's contention that his detention in Newark was illegal because there were no exigent circumstances, the officers were not in hot pursuit, and Union County officials traveled outside their jurisdiction to Newark in order to effectuate the arrest. The judge also disagreed with defendant, who argued that the arrest warrant procedure was improper because the investigating officers, not an eyewitness or a victim, set forth probable cause. Neither was the judge convinced that the Graves Act implications of his sentence had not been adequately explained to defendant.

On appeal, defendant now raises the following points:

POINT I

THE ISSUES RAISED IN THIS PCR PETITION CAN NOT BE PROCEDURALLY BARRED UNDER RULE 3:22-12.
 

POINT II

THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING THE WADE HEARING.

POINT III

THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING DEFENDANT'S DETENTION IN NEWARK.

POINT IV

PCR COUNSEL NEGLECTED TO FULLY BRIEF AND ARGUE ISSUES ESSENTIAL TO DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WARRANTING A REMAND (not raised below).

As we have said, we affirm denial of the PCR petition for the reasons given by Judge Moynihan. We only comment on defendant's claim that PCR counsel was ineffective.

Defendant asserts that PCR counsel undermined the effectiveness of arguments being made under Wade, by failing to provide the court with complete police reports. Additionally, defendant asserts that PCR counsel's failure to argue mitigating factors, or argue against aggravating factors, was also ineffective. Lastly, defendant asserts "that the weight of the evidence supporting the aggravated manslaughter charge was entirely based on testimony of witnesses whose credibility was untested . . . ." All these arguments are lacking in merit.

The judge analyzed the facts assuming that the show-up occurred in the suggestive manner defendant alleged, even in the absence of record support. But he found that, in accord with established precedent, since the shooting and the show-up were close in time, and George had seen defendant during the course of a prior incident, the identification was nonetheless reliable. See State v. Herrera, 187 N.J. 493, 507-09 (2006).

With regard to the claim that defendant's PCR attorney was ineffective because he failed to address trial counsel's alleged failure to present mitigating and aggravating factors at sentence, we note first that defendant qualified for a Graves Act sentence because of his prior criminal history. Both the sentencing courts found aggravating factors three, six, and nine. Although we do not have a presentence report, the second sentencing judge stated that defendant had at least four prior indictable convictions, and had violated parole. Nothing in either sentencing transcript established any basis for a mitigating factor. If it was not ineffective for the attorneys to have said more at sentencing than was stated, it was not ineffective for PCR counsel to have failed to raise the issue.

The argument that PCR counsel should have contended that the evidence supporting the aggravated manslaughter charge was based on testimony of witnesses whose credibility was "untested" lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). The survivors of the shooting had been previously robbed by defendant and his cohort, and had identified them from these unfortunate encounters.

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).