STATE OF NEW JERSEY v. JEVON ROBINSON

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0039-19T1
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JEVON ROBINSON, a/ka
JEVON COLEMAN-ROBINSON

     Defendant-Appellant.
____________________________

                   Submitted October 14, 2020 – Decided November 25, 2020

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Accusation No. 14-03-0778.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Linda A. Shashou, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
        Defendant appeals from a February 22, 2019 order denying his petition

for post-conviction relief (PCR) following oral argument, but without an

evidentiary hearing. We affirm because defendant did not establish a prima

facie showing of ineffective assistance of counsel.

                                          I.

        On March 18, 2014, defendant waived prosecution as a juvenile and

agreed to be prosecuted as an adult. That same day, he pled guilty to first-degree

aggravated manslaughter,  N.J.S.A. 2C:11-4(a), and second-degree aggravated

assault,  N.J.S.A. 2C:12-1(b)(1).

        In pleading guilty defendant admitted that, when he was sixteen years old,

he and three co-defendants formed a plan to rob marijuana from someone. They

set up a meeting to buy marijuana from L.O., who defendant did not know. 1

Defendant, armed with a handgun, drove a car with his three co-defendants to

the meeting. When defendant met with L.O., L.O. apparently concluded that

defendant and his companions did not intend to buy the marijuana and he began

to walk away. Defendant pulled out the handgun, shot and killed L.O. As

defendant was shooting at L.O., one of his co-defendants tried to stop him by




1
    We use initials for the victim to protect his family's privacy interests.
                                                                                A-0039-19T1
                                           2
taking the gun away. In the ensuing struggle, defendant hit the co-defendant on

the head with the handgun.

      In the plea agreement, the State recommended that on the charge of

aggravated manslaughter, defendant be sentenced to twenty-three years in prison

subject to the No Early Release Act (NERA),  N.J.S.A. 2C:43-7.2. The State

also recommended that defendant be sentenced to a concurrent prison term of

ten years on the aggravated assault charge.

      During the plea hearing, defendant, under oath, acknowledged that he was

satisfied with his counsel and that his counsel had reviewed the charges with

him. The court also reviewed the recommended sentence with defendant. He

acknowledged he was aware of the recommendations and that those

recommendations were significantly less than the maximum sentence exposure

for first- and second-degree crimes. Furthermore, defendant acknowledged that

his parents, who were in court when defendant pled guilty, had participated in

his decision to plead guilty.

      Thereafter, in accordance with his plea agreement, defendant was

sentenced to twenty-three years in prison with parole ineligibility and conditions

as prescribed by NERA on the first-degree manslaughter conviction. Defendant




                                                                          A-0039-19T1
                                        3
was also sentenced to a concurrent term of ten years in prison on the second -

degree aggravated assault conviction.

       Defendant did not file a direct appeal. Instead, in March 2018, defendant

filed a petition for PCR, contending that his counsel had been ineffective in

providing assistance.      He was assigned PCR counsel, who submitted

supplemental papers on his behalf.

       On February 22, 2019, the same judge who had taken defendant's plea and

sentenced defendant heard oral arguments on the PCR petition. That same day,

the court issued an order denying the petition and explained the reasons for the

denial on the record.

       The PCR court found that defendant's petition was procedurally barred

because it was effectively an excessive sentencing argument that should have

been raised on direct appeal. The PCR court also found that defendant had failed

to satisfy either prong of the Strickland 2 test needed to show ineffective

assistance of counsel. In making that finding, the court noted that at sentencing

defendant's counsel had discussed defendant's young age and the court had

considered defendant's age and history.




2
    Strickland v. Washington,  466 U.S. 668, 687 (1984).
                                                                         A-0039-19T1
                                        4
                                       II.

      On appeal, defendant focuses his one argument on his sentence. He

contends:

            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING AS
            TESTIMONY    IS    NEEDED   REGARDING
            COUNSEL'S FAILURE TO DESCRIBE TO THE
            SENTENCING COURT THE STRUGGLES AND
            CHALLENGES     MR.   ROBINSON   FACED
            THROUGH HIS CHILDHOOD, WHICH WOULD
            HAVE WARRANTED A LESSER SENTENCE.

      Having conducted a de novo review, we do not agree with the PCR court

that defendant's petition was procedurally barred. Defendant contends that his

trial counsel was ineffective in making arguments at sentencing. That is not an

excessive sentencing argument; rather, it is an ineffective assistance argument

that is appropriately addressed in a PCR petition. See State v. Armour,  446 N.J.

Super. 295, 317 (App. Div. 2016) (finding defendant's ineffective assistance

claim "better suited for a PCR petition"). We do, however, agree with the PCR

court that defendant failed to establish a prima facie showing of ineffective

assistance of counsel and, therefore, the petition was properly denied without an

evidentiary hearing.

      A defendant is entitled to an evidentiary hearing on a PCR petition only

if he or she establishes a prima facie showing in support of the petition , "there

                                                                          A-0039-19T1
                                        5
are 'material issues of disputed fact that cannot be resolved by reference to the

existing record,' and a 'hearing is necessary to resolve the claims for relief .'"

State v. Rose,  458 N.J. Super. 610, 624 (App. Div. 2019) (quoting R. 3:22-10).

To establish a claim of ineffective assistance of counsel, defendant must satisfy

a two-part test:   (1) "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment[,]" and (2) "the deficient performance prejudiced the defense."

Strickland,  466 U.S.  at 687; accord State v. Fritz,  105 N.J. 42, 58 (1987)

(adopting the Strickland test). Moreover, defendant must make those showings

by presenting more than "bald assertions" that he or she was denied the effective

assistance of counsel. State v. Cummings,  321 N.J. Super. 154, 170 (App. Div.

1999).

      At his sentencing, defendant's counsel emphasized defendant's young age

at the time he committed the crime and argued that the court should impose a

sentence lower than the sentence recommended by the State. The sentencing

court was well-aware of defendant's age. The court then found aggravating

factors three and nine,  N.J.S.A. 2C:44-1(a)(3) and (9), and mitigating factors six

and twelve,  N.J.S.A. 2C:44-1(b)(6) and (12). The court also found that the




                                                                          A-0039-19T1
                                        6
aggravating factors substantially outweighed the mitigating factors and accepted

the State's sentencing recommendation.

      The record demonstrates that defendant's counsel was not ineffective in

dealing with or presenting arguments concerning defendant's youth at the time

of the crime. Instead, the record demonstrates that counsel used defendant's

young age to help negotiate a favorable plea. Had defendant been found guilty

of first-degree murder, he could have been sentenced to over thirty years of

imprisonment with thirty years of parole ineligibility. If he had been convicted

of second-degree aggravated assault, that sentence could have been imposed

consecutively because it involved a different victim.

      The record also amply demonstrates that even if counsel had raised

arguments about defendant's hardships during his childhood, there is no showing

that such arguments would have resulted in a lower sentence. The PCR judge,

who was both the plea judge and sentencing judge, found that the arguments

defendant now seeks to present would not have changed her views.

      We also reject defendant's argument that he was entitled to an evidentiary

hearing based on the cases of Miller v. Alabama,  567 U.S. 460 (2012) and State

v. Zuber,  227 N.J. 422 (2017). In sentencing juveniles, special considerations

must be evaluated when the juvenile is sentenced to life in prison or lengthy


                                                                        A-0039-19T1
                                       7
overall terms of imprisonment. Miller,  567 U.S.  at 473-74, 476-80; Zuber,  227 N.J. at 429. The United States Supreme Court has held that "the Eighth Amendment

forbids a sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders." Miller,  567 U.S.  at 479. In Miller, the Supreme Court did not

"foreclose" life without parole for juveniles convicted of murder, but it did require

sentencing judges "to take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at

480. Thus, the Supreme Court identified five factors (the Miller factors) that sentencing

judges should consider in sentencing juveniles to life in prison without the possibility of

parole. Id. at 477-78.

      Our Supreme Court has adopted the Miller factors and has held that those factors

must be considered in sentencing juveniles to sentences "that are the practical equivalent

of life without parole[.]" Zuber,  227 N.J. at 429. Accordingly, the Miller factors must

be considered when "a judge imposes consecutive terms that would result in a lengthy

overall term of imprisonment for a juvenile[.]" Ibid.

      Here, defendant was not sentenced to life in prison or a lengthy overall

term of imprisonment that would trigger the sentencing considerations required

by Miller and Zuber. Defendant was seventeen years old when he was sentenced

to twenty-three years in prison with eighty-five percent of that time ineligible


                                                                                  A-0039-19T1
                                            8
for parole. Accordingly, defendant is likely to serve less than twenty years in

prison for aggravated manslaughter. He therefore will likely be released before

he is forty years of age. Such a sentence is not an overly lengthy term of

imprisonment, given the crimes that defendant admittedly committed.

      Affirmed.




                                                                       A-0039-19T1
                                      9