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(NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5152-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL ARMSTRONG,

Defendant-Appellant.

________________________________________________________________ December 8, 2011 Submitted September 27, 2011 - Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Passaic County,
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Indictment No. 02-05-0659.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm. On December 2, 2002, defendant pled guilty to one count of first-degree carjacking, N.J.S.A. 2C:152(a)(1), pursuant to a plea agreement in which five other counts of an indictment returned against him were dismissed. The plea form reflected that the prosecutor had agreed to recommend a "custodial sentence not to exceed 18 [years] state prison with an 85% parole disqualifier." The form also included a supplemental plea form in which defendant acknowledged that he was subject to a mandatory five-year term of parole supervision upon release. However, during questioning of defendant in the plea proceeding, defendant's attorney recounted that he had "conferenced the case with the court and the court indicated that if all things are [as] outlined to the court that the court would consider a 15 year sentence of which [defendant would] have to serve 85 percent." Defendant agreed that was his understanding of the plea bargain. Prior to his sentencing, he filed a motion to withdraw his guilty plea. His motion was denied on June 20, 2003. Defendant was sentenced to fifteen years with an 85% parole disqualification and five years parole supervision upon release. Defendant filed a notice of appeal and subsequently withdrew his appeal. In January 2007, he filed a pro se PCR petition in which he alleged he was denied the effective assistance of counsel and should be permitted to withdraw his guilty plea. He was assigned counsel and a hearing was conducted regarding his claim. The PCR judge denied his petition in December 2009. In this appeal, defendant presents the following issues for our consideration:

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POINT I

DEFENDANT RECEIVED INEFFECTIVE REPRESENTATION FROM TRIAL COUNSEL WHO MISADVISED DEFENDANT CONCERNING HIS SENTENCING EXPOSURE

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POSTCONVICTION COUNSEL

We are not persuaded by either of these arguments and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed.2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. In Point I, defendant argues that his trial counsel was ineffective because "he was induced to plead guilty when his lawyer said that, if he rejected the judge's fifteen year offer, he would get thirty years." As reflected on the plea form, the maximum exposure for the first-degree carjacking offense to which defendant pled guilty was thirty years. Defendant's trial attorney testified at the evidentiary hearing that he reviewed with him the fact he could receive a thirty-year sentence as well as the strength of the State's case. It is evident from the PCR court's written opinion that the court found counsel's version of events more credible than that offered by defendant: The Court finds that Petitioner's discussions with defense counsel as to an exposure of 30 years in custody if convicted and the quality of the evidence against him indicate trial counsel's assessment of the case against the Petitioner,
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not threatening or coercive in any manner.

The PCR court also noted that the transcript of defendant's guilty plea reflected an acknowledgment of his guilt of the offense to which he pled guilty, that no threats or promises had been made to him other than those contained in the plea form, and that he was satisfied with the advice he received from his attorney. Accordingly, the court rejected defendant's claim of coercion and concluded that defendant failed to satisfy the first prong of the Strickland/Fritz test. We are satisfied that this conclusion is adequately supported by the record. In his petition, defendant alleged that, in addition to coercing him into accepting the plea offer, his trial counsel had been ineffective in failing to file motions to reduce bail, dismiss the indictment, and suppress evidence. At the evidentiary hearing, his trial counsel testified as to his experience as a defense counsel. He stated that, based upon his customary practice, he would not have filed a motion to challenge an inculpatory statement defendant made to police unless the case were going to trial. There was no evidence that such a motion was foreclosed prior to defendant's guilty plea. Counsel also stated that he did not file a motion to dismiss the indictment because, in his judgment, it would not have been successful. In denying the petition, the PCR court concluded that the allegation of ineffective assistance based upon the failure to file motions was not supported by the record: Trial counsel testified at the hearing before this Court that there were no dispositive motion(s) with merit to be filed prior to the plea being entered. Petitioner was aware no motions were filed before entering his guilty plea which did not deter him in pleading guilty. Further, Petitioner has not demonstrated to this Court which motions, if any, trial counsel failed to file on his behalf that may or may not have any merit.

[(Emphasis added).]

Defendant alleged in his petition that trial counsel had been ineffective in failing to obtain and discuss discovery with him. At the evidentiary hearing, defendant's trial counsel testified that he gave defendant the discovery and stated, "I had a sufficient amount of the discovery to advise my client to accept the plea. If I -- if there was something that I didn't have that I thought I needed, before I would have given that advise [sic], I would have gotten it." Further, he testified that he sent an investigator to
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interview a witness identified by defendant. In its opinion, the PCR court addressed these allegations: [T]he Court finds trial counsel . . . sent the discovery to the Petitioner for his review, conducted an independent investigation obtaining a statement from Quam Barksdale, a potential defense witness.

....

This allegation [that trial counsel failed to obtain or review discovery with defendant] is not supported by the record. There has been nothing presented to this Court by way of testimony indicating what if any discovery was not received by trial counsel and not reviewed by Petitioner with the exception of the "Miranda Form" signed by the Petitioner when he gave his statement to the police. Nor has there been any demonstration to this Court that any discovery allegedly not received or reviewed by the Petitioner would be exculpatory and cause Petitioner not to accept the plea offer and enter a guilty plea.

[(Emphasis added).]

Thus, there were two bases for the PCR court's rejection of the allegations of ineffective assistance of counsel. First, the court accepted the testimony by defendant's trial counsel as to his exercise of judgment in obtaining and reviewing necessary discovery with defendant and determining there were no appropriate motions to be filed. The court therefore concluded that counsel's conduct did not fall below an objective standard of reasonableness, see State v. DiFrisco, 174 N.J. 194, 218 (2002), resulting in a failure by defendant to satisfy the first prong of the Strickland/Fritz test. That conclusion, based in part upon an assessment of the credibility of the witnesses, is entitled to our deference because it has adequate support in the record. Defendant next argues that he was denied the effective assistance of PCR counsel, essentially because PCR counsel failed to prove the allegations he had made against trial counsel in his petition. His argument regarding PCR counsel rests upon the second ground articulated by the PCR court for its decision, that defendant had failed to demonstrate that any of the motions not filed or discovery allegedly not obtained or reviewed would have made a difference here. That argument addresses the second prong of the Strickland/Fritz test. Because there was a failure of proof regarding the first prong, the adequacy of proof
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of the second prong was of no moment. We are therefore satisfied that the petition was properly denied. Affirmed.

1 Defendant did not present any argument regarding the denial of his motion to withdraw his guilty plea. However, since that is a matter that would have been properly raised in a direct appeal, it should have been procedurally barred. See R. 3:22-4(a).

This archive is a service of Rutgers School of Law - Camden.

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