STATE OF NEW JERSEY v. tyrone A. price

NOT FOR PUBLICATION WITHOUT THE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.

tyrone A. price,

Defendant-Appellant.

____________________________

September 22, 2015

Submitted September 17, 2015 Decided

Before Judges Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-03-0566.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an October 10, 2013 order denying his petition for post-conviction relief (PCR). Defendant maintains that his plea counsel rendered ineffective assistance. We affirm.

We discern the following facts from defendant's testimony at the plea hearing. A dispute arose between defendant's girlfriend and the victim. Defendant became upset about that dispute and approached the victim's house, found the victim outside the residence, and struck the victim with his fist, causing the victim to fall backwards hitting his head on the concrete driveway. Defendant then began kicking the victim repeatedly in the face and head. The victim died from his injuries and defendant was arrested the following day.

A grand jury indicted defendant, charging him with first-degree murder, N.J.S.A. 2C:11-3a(1), (2). Defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1). Based on defendant's plea testimony, the judge determined that defendant pled guilty "knowingly and voluntarily with the assistance of competent counsel with whose services [defendant wa]s satisfied."

Pursuant to terms of a negotiated plea agreement, the judge sentenced him to seventeen years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2a. Defendant appealed the sentence imposed, which we considered on our excessive sentencing oral argument calendar, R. 2:9-11, and we affirmed in an unpublished opinion. State v. Price, No. A-0503-10 (App. Div. Mar. 17, 2011). The Supreme Court denied certification. State v. Price, 208 N.J. 336 (2011).

In July 2012, defendant filed this PCR petition. Defendant asserted that plea counsel (1) failed to review all the discovery with him; (2) failed to explain the differences between aggravated manslaughter and passion/provocation murder; and (3) forced him to accept the plea. The PCR judge considered oral argument, denied the petition, and issued a comprehensive written decision. The judge concluded without an evidentiary hearing that defendant did not establish a prima facie showing of ineffective assistance of counsel.

Defendant raises the following points on appeal

POINT [I:]

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

POINT [II:]

AS A RESULT OF TRIAL COUNSEL'S FAILURE TO ADEQUATELY EXPLAIN TO DEFENDANT THE DIFFERENCES BETWEEN AGGRAVATED MANSLAUGHTER AND PASSION/PROVOCATION MANSLAUGHTER, DEFENDANT DID NOT ENTER A KNOWING AND VOLUNTARY PLEA BECAUSE HE LACKED A FULL UNDERSTANDING OF THE CONSEQUENCES OF HIS GUILTY PLEA, THUS DEPRIVING HIM OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

For defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). Both the United States Supreme Court and the New Jersey Supreme Court have extended the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 556, U.S. ___, ___, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 556 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. [at 2068], 80 L. Ed 2d [at 698]).

We are persuaded that the alleged deficiencies raised by defendant clearly fail to meet either of the performance or prejudice prongs of the Strickland test. Defendant has also not shown with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. We affirm substantially for the reasons set forth in the judge's written opinion. We add the following brief remarks.

Defendant failed to sufficiently show how his counsel's performance was deficient or explain how he was allegedly forced into taking the plea. During the plea hearing, defendant admitted that his counsel explained to him possible defenses, including "passion provocation" and "self-defense." Defendant also admitted that he reviewed "all the information in the case file" which included eye witness statements that defendant "kicked [the victim] in the head at least [twenty] times" and that defendant was "aware that [he] kicked [the victim]." Defendant stated at his plea hearing that no one "made any threats or undisclosed promises to get [him] to enter into this plea agreement or forced [him] in any way to enter into this plea agreement."

Our review of the entire plea transcript and plea form leads us to conclude that defendant's bald assertions are belied by the record. Plea counsel specifically questioned defendant about possible defenses to the deadly beating. At the plea hearing, defendant admitted that plea counsel specifically reviewed the defense of passion provocation and self-defense. Defendant acknowledged that a witness saw him kick the victim "at least [twenty] times." Defendant conceded that he was "blind with rage" during the attack leaving the victim defenseless on the driveway. And most importantly, defendant testified at the hearing that based on the number of times he kicked the victim, defendant's actions constituted "extreme indifference to the value of human life." Thus, defendant's unsupported contentions are without merit.

As to the distinction between aggravated manslaughter and passion/provocation manslaughter, we also note that passion/provocation manslaughter has four elements: "(1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; (4) a defendant who did not cool off before the slaying." State v. Galicia, 210 N.J. 364, 379-380 (2012) (quoting State v. Josephs, 174 N.J. 44, 103 (2002) (citation omitted)). The objective element of a reasonable and adequate provocation is absent here. Further, time passed between defendant's conversation with his girlfriend and his attack upon the victim. Accordingly, defendant's argument asserting counsel's omission was not prejudicial and is without merit.

We are also convinced that an evidentiary hearing was unwarranted. An evidentiary hearing on a PCR petition is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Preciose, 129 N.J. 451, 462-63 (1992). For a judge to order a hearing, the defendant must make a prima facie showing of ineffective assistance of counsel by demonstrating a reasonable likelihood of success under the Strickland test. Ibid.; see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999). Defendant failed to meet this standard because he cannot demonstrate a reasonable likelihood of success under the Strickland/Fritz test.

Affirmed.