STATE OF NEW JERSEY v. SYLVIA THOMPSON,

NOT FOR PUBLICATION WITHOUT THE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-1617-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SYLVIA THOMPSON, a/k/a
JANELLE THOMPSON,
ERICKA B. THOMPSON,
SYLVIA B. THOMPSON
AND SYLVIA L. THOMPSON,

     Defendant-Appellant.
____________________________

                    Submitted March 18, 2020 – Decided April 24, 2020

                    Before Judges Fuentes and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 14-09-2940.

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

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

PER CURIAM

      Defendant Sylvia Thompson appeals from the November 2, 2018 denial

of her post-conviction relief petition (PCR) without an evidentiary hearing. We

affirm, substantially for the reasons stated by Judge Frederick J. Schuck in his

thorough and well-reasoned oral opinion. Because Judge Schuck's opinion

comprehensively and correctly addressed all of defendant's PCR issues, a brief

summary will suffice.

      The circumstances leading to defendant's arrest and conviction occurred

in July 2014, when defendant drove her car into a section of a church building

in Lindenwold. The police were called and when one uniformed officer tried to

place defendant in handcuffs, she resisted and "elbowed" the officer in the head

several times.

      In November 2014, defendant pled guilty to third-degree aggravated

assault on a police officer,  N.J.S.A. 2C:12-1(b)(5)(a). In exchange for her plea,

the State agreed to dismiss her remaining charges and to recommend a

probationary term as well as a 180-day jail sentence, without objection to her

serving her custodial sentence on the Home Electronic Detention Program.



                                                                         A-1617-18T4
                                       2
      Judge Schuck presided over defendant's plea hearing. He found she freely

and voluntarily admitted she assaulted a uniformed officer while he tried to

perform his duties, that she fully understood her plea agreement and had

provided truthful answers in her plea agreement.       The judge also credited

defendant's testimony that her trial attorney answered all her questions to her

satisfaction.

      At defendant's sentencing in January 2015, her attorney asked Judge

Schuck to consider imposing a minimal probationary sentence, based on various

mitigating factors. Defendant's attorney confirmed that defendant suffered from

bipolar disorder and auditory hallucinations. Judge Schuck imposed a two-year

probationary term, directed defendant to undergo a mental health evaluation and

serve a 180-day jail sentence, but allowed her to serve this time on the Home

Electronic Detention Program. Defendant also was required to pay various

assessments and restitution to the church.

      Defendant filed a direct appeal to this court in March 2015. She violated

the terms of her probation while her appeal was pending.            We granted

defendant's emergent application for a remand to allow the trial court to

adjudicate her violation of probation. Then, at defendant's request, we dismissed

her appeal in December 2015.


                                                                         A-1617-18T4
                                       3
      Defendant filed a PCR petition in December 2017, which was dismissed

without prejudice in May 2018.      After defendant renewed her PCR petition,

Judge Schuck conducted oral argument on November 2, 2018 to address her

claim that she received ineffective assistance of counsel. Specifically, defendant

contended that just prior to her plea hearing, her trial attorney misled her into

believing she would be pleading guilty to a different crime, and then forced her

to plead guilty to the assault charge. Additionally, defendant argued her trial

attorney failed to address her mental health issues before defendant was

sentenced. Judge Schuck found defendant's arguments were belied by the record

and he denied defendant's PCR petition without an evidentiary hearing.

      On this appeal, defendant presents the following argument:

            POINT ONE

            [DEFENDANT]    IS  ENTITLED   TO   AN
            EVIDENTIARY HEARING ON HER CLAIM THAT
            HER ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL BY MISLEADING
            HER INTO BELIEVING SHE WAS PLEADING
            GUILTY TO A DIFFERENT CRIME, COERCING
            HER INTO A PLEA, AND FAILING TO
            [INVESTIGATE] AND PRESENT ADEQUATELY
            HER MENTAL HEALTH ISSUES.




                                                                          A-1617-18T4
                                        4
      Having canvassed the entire record presented to us, we conclude this

argument lacks sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). We add the following comments.

      A defendant's claim of ineffective assistance of counsel is considered

under the standards established in Strickland v. Washington,  466 U.S. 668, 687

(1984), and adopted by our Supreme Court in State v. Fritz,  105 N.J. 42, 58

(1987). The Strickland test applies to challenges to guilty pleas based on alleged

ineffective assistance of counsel. Hill v. Lockhart,  474 U.S. 52, 58 (1985). A

defendant must show that her attorney failed to provide advice that "was within

the range of competence demanded of attorneys in criminal cases." Id. at 56

(quoting McMann v. Richardson,  397 U.S. 759, 771 (1970)). A defendant also

must show "there is a reasonable probability that, but for counsel's errors, [she]

would not have pleaded guilty and would have insisted on going to trial." Id. at

59.

      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.

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, material issues of disputed facts lie outside the


                                                                          A-1617-18T4
                                        5
record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State

v. Porter,  216 N.J. 343, 355 (2013).

      "[I]n order to establish a prima facie claim, [the defendant] must do more

than make bald assertions that [s]he was denied the effective assistance of

counsel. [The defendant] must allege facts sufficient to demonstrate counsel's

alleged substandard performance." Cummings,  321 N.J. Super. at 170. The

defendant must establish, by a preponderance of the credible evidence, that she

is entitled to the required relief. State v. Nash,  212 N.J. 518, 541 (2013).

      We review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion. State v. Preciose,  129 N.J. 451, 462

(1992). Following our review of defendant's arguments in light of the record

and applicable legal principles, we are satisfied defendant's PCR petition was

properly denied without an evidentiary hearing for the reasons outlined by Judge

Schuck in his well-reasoned oral opinion.

      Affirmed.




                                                                          A-1617-18T4
                                        6