STATE OF NEW JERSEY v. SHAHEED ERVING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4523-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAHEED ERVING,

Defendant-Appellant.

____________________________________

November 30, 2015

Submitted October 26, 2015 Decided

Before Judges Lihotz and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-03-0774.

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

Carolyn A.Murray, Acting EssexCounty Prosecutor, attorney for respondent (LeeAnn Cunningham,Special DeputyAttorney General/ActingAssistant Prosecutor,of counsel and on the brief).

PER CURIAM

Defendant appeals from a January 17, 2014 order denying his petition for post-conviction relief (PCR). Defendant maintains that his plea counsel rendered ineffective assistance. We affirm.

A grand jury indicted and charged defendant with first-degree murder, N.J.S.A. 2C:11-3a (1) and (2) (Count One); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Five).

In September 2008, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (Count One as amended); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Four).1 At the plea hearing, defendant testified he walked into a bar and fired five shots using a 357 revolver. He admitted during the hearing that he knew by firing the gun there was a probability of death. As a result of the shooting, defendant killed the victim.

The judge sentenced defendant in accordance with the negotiated plea agreement, dismissed Counts Two and Five, and imposed an aggregate prison term of eighteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 A. 2

We affirmed the sentence on our excessive sentencing oral argument calendar, but we reversed the unlawful possession of a weapon conviction for failure to establish an adequate factual basis. The Supreme Court denied certification. State v. Erving, 213 N.J. 387 (2013). In August 2012, the court entered a judgment of acquittal on Count Four.

In July 2013, defendant filed a pro se petition for PCR. Assigned PCR counsel argued that plea counsel failed to properly investigate and prepare "pre-trial through sentencing." Judge Michael L. Ravin conducted oral argument, rendered a written decision, and denied the petition without an evidentiary hearing.

On appeal, defendant argues

THE PCR COURT IMPROPERLY DENIED [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING, WHERE [DEFENDANT] HAD ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD SUCCEED ON THE MERITS.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Ravin in his written opinion. We add the following comments.

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, 566 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 the performance or prejudice prongs of the Strickland test. Moreover, defendant has not shown with "reasonable probability" that the result would have been different had he received proper advice from his plea attorney.

As to the first prong of Strickland, defendant generally maintains that plea counsel failed to prepare for trial and file a motion to suppress, and that he was otherwise forced to plead guilty. Here, defendant pled guilty after the court denied his Wade3 and Miranda4 motions. Defendant indicated to the judge he was guilty and stated at the plea hearing that he wanted to avoid additional prison time. Although defendant faced a potential life sentence on the charges in the original indictment, and forty-five years on the charges in the amended indictment, plea counsel negotiated for an aggregate prison term of eighteen years. Defendant also testified at the plea hearing that no one threatened or coerced him to plead guilty, he was doing so voluntarily, and he was satisfied with the legal services of his plea counsel.

As to the second prong of Strickland, defendant speculates, as he did before the PCR judge, that if he had met with plea counsel more frequently, namely more than three times, the result would have been different. However, defendant produced no competent evidence to demonstrate with "reasonable probability" that the result would have been different. Even if defendant had shown that his plea counsel's assistance was deficient, which is not the case, defendant has not satisfied prong two of Strickland.

Finally, a defendant is entitled to an evidentiary hearing only when he or she "has presented a prima facie [case] in support of [PCR,]" meaning that "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (first alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Defendant fails to demonstrate a reasonable likelihood of success on the merits, and thus he is not entitled to an evidentiary hearing.

Affirmed.

1 Defendant indicated at the plea hearing that his name is spelled "Ervin," rather than "Erving," as it appears throughout the record on appeal.

2 Defendant received eighteen years in prison subject to NERA on Count One, concurrent to a ten-year prison term on Count Three subject to NERA, and five years in prison on Count Four.

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

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).