STATE OF NEW JERSEY v. KEITH CARSON

NOT FOR PUBLICATION WITHOUT THE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.

KEITH CARSON, a/k/a KEITH R.

CARSON, KEITH RASHON CARSON

and MOOK CARSON,

Defendant-Appellant.

____________________________

December 17, 2015

Submitted November 30, 2015 Decided

Before Judges Messano and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0104.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Nasheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Keith Carson appeals from the January 10, 2014 Law Division order, which denied his petition for post-conviction relief without an evidentiary hearing. We affirm.

A grand jury indicted defendant and his two co-defendants for second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1(a)(1); and first-degree felony murder, N.J.S.A. 2C:11-3(a)(3). On October 29, 2007, defendant pled guilty to first-degree robbery and to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). In exchange, the State agreed to recommend an aggregate twenty-one year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At the plea hearing, defendant acknowledged, under oath, that he read and understood the indictment, was familiar with the charges, and understood the rights he was forfeiting by pleading guilty. He also acknowledged that he understood the plea agreement and that by pleading guilty, he exposed himself to a fifty-year term of imprisonment. Defendant admitted that his plea was voluntary and that no one forced or coerced him into pleading guilty. He affirmed that he read, understood, signed and initialed the plea forms, had sufficient time to confer with defense counsel, and counsel explained in detail the charges against him and satisfactorily answered all of his questions.

In providing a factual basis, defendant testified that on March 15, 2005, he, along with his two stepsons and a third co-defendant, Omar Lewis, discussed robbing someone. Defendant admitted that he knew and understood that Lewis had a knife and intended to use it to commit the robbery; Lewis had the knife with him when they sought out a person to rob; and Lewis, in the course of committing the robbery, stabbed the victim and the victim died as a result of the stabbing. Defendant also admitted that he initiated the robbery by pushing the victim to the ground and then kicking and punching him; he knew that the beating alone would probably cause the victim injuries that would result in his death; and he knew that that by robbing, kicking and punching the victim and keeping the victim on the ground, it was probable that more serious harm would come to the victim if somebody used a weapon.

Following the factual basis, the following colloquy occurred between counsel and defendant

Q. Keith, did I tell you if you had gone to trial and you had been convicted of the offenses of felony murder and robbery that the Court could not sentence you separately for those two crimes?

A. Yes.

Q. Did I explain to you that in that situation the crime of robbery would be merged into the greater conviction of felony murder?

A. Yes.

Q. And recently did I bring to the jail a copy of the direct and cross-examination of several of the witnesses who testified at the trial of Omar Lewis?

A. Yes.

Q. In which they indicated at the trial of Omar Lewis your involvement in the robbery and the attack on the victim at his trial?

A. Yes.

Q. And you had a chance to review that in the last couple of weeks I think?

A. Yes.

Q. And this morning, even though you were not physically present in the courtroom, you were in the [jury room] when I advised you that, Juan Montanez pled guilty and indicated that he would be prepared to testify against you at your trial?

A. Yes.

Q. And you had previously been given copies of the sworn statements he gave to the police in which he indicated your substantial involvement in the case?

A. Yes.

At sentencing, defense counsel conceded that aggravating factors two, six and nine and asked the court to find mitigating factors two, three and four. Counsel requested a sentence of between fifteen to eighteen years subject to NERA. Defendant affirmed his sworn testimony at the plea hearing and apologized to the victim's family. The trial court found aggravating factors two, three, six and nine and no mitigating factors. Although defendant was eligible for a term of life imprisonment without parole pursuant to the "three strikes law," N.J.S.A. 2C:43-7.1, the court accepted the negotiated plea and sentenced defendant to an aggregate twenty-one year term of imprisonment subject to NERA.

Defendant did not file an appeal. On January 14, 2013, he filed a PCR petition grounded on the ineffective assistance of defense counsel. Defendant argued, and defense counsel admitted, that contrary to defendant's instructions, counsel did not file a notice of appeal. Defendant also argued that counsel coerced him to admit that Lewis had a knife and to plead guilty to aggravated manslaughter and when he was only guilty of reckless manslaughter. Contrary to his sworn testimony at the plea hearing, defendant certified that he did was not aware that Lewis had a knife and he only agreed to participate in a robbery but not to use a weapon during the robbery. Although defendant also certified that counsel coerced him to testify at the plea hearing that he had a knife, defendant gave no such testimony. Defendant further argued that counsel failed to effectively advocate for him at sentencing by conceding to aggravating factor two and not requesting mitigating factor eleven.

The PCR court denied the petition without an evidentiary hearing. The court concluded that defense counsel's failure to file an appeal satisfied the first prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) -- that defense counsel counsel's performance was deficient -- but not the second prong -- that counsel's errors prejudiced the defense. The court reviewed the plea transcript and found defendant's coercion claims lacked credibility. The court also found there never was a plea offer to reckless manslaughter, defendant's plea allocution supported a finding of felony murder as well as aggravated manslaughter, and there was no support for a lesser sentence. This appeal followed. On appeal, defendant reiterates the arguments he made before the PCR court.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. 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. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant

must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.

Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome" of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Applying these standards, we discern no reason to reverse the denial of defendant's PCR petition. Although defense counsel's failure to file an appeal satisfies the first Strickland prong, defendant did not establish that but for counsel's error, the result would have been different. Nor did defendant establish either of the Strickland prongs with respect to counsel's performance at sentencing. There was no evidence of a plea offer to reckless manslaughter and defendant's plea allocution, as well as the State's overwhelming evidence against him, clearly supported a conviction for felony murder, which could have resulted in a term of life imprisonment. The record amply supports the court's findings of aggravating and mitigating factors, but does not support a lesser sentence, and any appeal of defendant's sentence would have been unsuccessful.

Affirmed.