STATE OF NEW JERSEY v. TYHEED JEFFERSON

NOT FOR PUBLICATION WITHOUT THE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-1399-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYHEED JEFFERSON,

     Defendant-Appellant.
__________________________

                   Submitted December 15, 2020 – Decided February 2, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 06-04-1204,
                   06-09-2896, 07-02-0450, 07-08-2889 and 07-12-3947.

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

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Matthew E.
                   Hanley, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Tyheed Jefferson appeals from an October 17, 2019 order

denying his petition for post-conviction relief (PCR). We affirm because the

petition was time-barred under Rule 3:22-12(a)(1) and otherwise lacked merit.

      In 2006 and 2007, defendant was charged under five indictments with

multiple drug-related crimes and terroristic threats. In February 2008, defendant

pled guilty to four crimes under four separate indictments. Specifically, he pled

guilty to three counts of third-degree distribution of cocaine and heroin within

1,000 feet of school property,  N.J.S.A. 2C:35-7, and third-degree terroristic

threats,  N.J.S.A. 2C:12-3(a).       During his plea hearing, defendant was

represented by two attorneys from different firms.     Under the plea agreements,

the State agreed to recommend an aggregate sentence of six years in prison with

thirty-six months of parole ineligibility. The State also agreed to dismiss all

other charges, including the charges in the fifth indictment.

      On July 2, 2008, defendant was sentenced. On the drug convictions, he

was sentenced to five years in prison with thirty-six months of parole

ineligibility. On the terroristic threat conviction, he was sentenced to three years

in prison. All sentences were run concurrent to each other. Defendant did not

file a direct appeal. In 2011, defendant was resentenced to time served because

he had kidney failure. He was then released from state prison.


                                                                            A-1399-19T4
                                         2
      In February 2018, defendant filed a petition for PCR, alleging that the two

lawyers who represented him when he pled guilty had pressured him into

pleading guilty and had provided ineffective assistance of counsel.             He

contended that both lawyers had failed to explain that he was pleading guilty to

four crimes and that he might face enhanced sentencing if he was convicted of

new crimes in the future. He also asserted that the lawyer representing him on

the terroristic threat charge failed to interview the alleged victim.

      Judge Nancy Sivilli heard oral arguments concerning defendant's petition.

On October 17, 2019, Judge Sivilli issued a written opinion and order denying

the petition without an evidentiary hearing. Judge Sivilli found that defendant's

petition had been filed almost ten years after he was sentenced, and he had failed

to show either excusable neglect or that a fundamental injustice would result if

the petition was not considered. See R. 3:22-12(a)(1)(A); State v. Goodwin,  173 N.J. 583, 594 (2002); State v. Brown,  455 N.J. Super. 460, 470 (App. Div. 2018).

      Judge Sivilli also addressed the merits of defendant's ineffective

assistance claims, rejecting each of defendant's contentions. She found that

defendant failed to establish the prongs required to show ineffective assistance.

See Strickland v. Washington,  466 U.S. 668, 687 (1984) (establishing a two-part

test: (1) "counsel made errors so serious that counsel was not functioning as the


                                                                          A-1399-19T4
                                         3
'counsel' guaranteed the defendant by the Sixth Amendment[,]" and (2) "the

deficient performance prejudiced the defense"); accord State v. Fritz,  105 N.J.
 42, 58 (1987) (adopting the Strickland test).

      In her thorough and well-reasoned opinion, Judge Sivilli found that the

record rebutted defendant's claim that he had been pressured into pleading

guilty. She pointed out that the judge taking his pleas had expressly asked

defendant if he was making a voluntary plea. Defendant told the judge he was.

Judge Sivilli also found that his argument about failing to interview a witness

lacked merit because no certification was submitted and hearsay from an

investigator offered ten years after the event had little probative value. Next,

Judge Sivilli found that defendant had been informed by his counsel and the

court that he was pleading guilty to four crimes and those crimes would be part

of his criminal record. Finally, Judge Sivilli found that defendant was not

entitled to an evidentiary hearing because he had failed to establish a prima facie

case of ineffective assistance of counsel and failed to provide certifications or

affidavits demonstrating prejudice.     See State v. Porter,  216 N.J. 343, 353

(2013); R. 3:22-10(b).




                                                                           A-1399-19T4
                                        4
      On this appeal, defendant argues that his petition should not be time barred

and that he has viable claims of ineffective assistance by his plea counsel. He

articulates those arguments as follows:

            POINT I – DEFENDANT'S PETITION FOR POST
            CONVICTION RELIEF SHOULD NOT BE TIME
            BARRED BECAUSE DEFENDANT'S DELAY IN
            FILING WAS DUE TO EXCUSABLE NEGLECT
            AND THE INTERESTS OF JUSTICE REQUIRE HIS
            CLAIMS BE HEARD.

            POINT   II   –   DEFENDANT     RECEIVED
            INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
            FOR COUNSEL'S FAILURE TO INTERVIEW
            AVAILABLE WITNESSES, AND FOR FAILURE TO
            EXPLAIN THE FUTURE RAMIFICATIONS OF
            PLEADING TO MULTIPLE INDICTMENTS PRIOR
            TO ACCEPTING A PLEA.

                  (A) APPLICABLE LAW

                  (B) DEFENDANT RECEIVED INEFFECTIVE
                  ASSISTANCE FOR COUNSEL'S FAILURE TO
                  INTERVIEW A WITNESS WHO HAD
                  EXCULPATORY      TESTIMONY       ON
                  DEFENDANT'S CHARGE OF TERRORISTIC
                  THREATS.

                  (C) DEFENDANT RECEIVED INEFFECTIVE
                  ASSISTANCE FOR COUNSEL'S FAILURE TO
                  INFORM HIS PLEA WOULD RESULT IN
                  MULTIPLE CONVICTIONS AS OPPOSED TO
                  ONE AND THE EFFECT THAT WOULD
                  HAVE     ON     ANY    SUBSEQUENT
                  CONVICTION.


                                                                          A-1399-19T4
                                          5
     Having conducted a de novo review, we reject these arguments.   We

affirm essentially for the reasons explained by Judge Sivilli in her

comprehensive written opinion issued on October 17, 2019.

     Affirmed.




                                                                A-1399-19T4
                                     6