Opinion
DOCKET NO. A-2639-11T1
2013-10-11
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREG TAVARES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-11-4350.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Greg Tavares, appeals from the Law Division's June 14, 2011 order denying his petition for post-conviction relief (PCR). We affirm.
We briefly describe the circumstances that resulted in the defendant's entry of a guilty plea to first-degree carjacking, N.J.S.A. 2C:15-2. On August 24, 2005, defendant and his co-defendant, Joseph Taliaferro, approached the victim, Lisa Miller, as she parked her car. The men demanded that she turn over her keys. She refused even though defendant was holding a silver handgun. Miller again refused, was struck on the head, and pushed to the ground. Defendant and his co-defendant were indicted for first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); and the carjacking offense to which defendant ultimately pled guilty.
The co-defendant, a juvenile, waived his right to have the matter addressed in family court, and his case was transferred to the criminal division. See R. 5:22-1. He ultimately entered a guilty plea to carjacking, N.J.S.A. 2C:15-2, in exchange for a recommendation of a five-year prison sentence, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The co-defendant also agreed to testify truthfully against defendant.
Defendant's plea agreement called for the State to recommend a sentence of ten years imprisonment subject to NERA. On April 5, 2006, he was sentenced in accordance with the plea agreement. No direct appeal was taken. When defendant filed a pro se motion for reduction of sentence, his application was treated as a petition for PCR. The brief filed by counsel in support of PCR only raised the issue of disparate sentencing, which is also defendant's sole point on appeal:
PETITIONER WAS DEPRIVED EFFECTIVE ASSISTANCE OF COUNSEL BY VIRTUE OF THE DISPARATE PLEA OFFERS AND ULTIMATE SENTENCES IMPOSED. AS SUCH, HE WAS DEPRIVE[D] OF DUE PROCESS AND A FAIR TRIAL.
Judge Ronald J. Freeman issued a ten-page opinion denying PCR as well as an evidentiary hearing. We find no merit to defendant's argument, and affirm essentially for the reasons stated by Judge Freeman in his decision. See R. 2:11-3(e)(2).
A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove by a preponderance of the evidence that counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). In other words, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We are persuaded that the alleged deficiency in this case failed to meet either the performance or prejudice prong of the Strickland test.
As discussed by Judge Freeman, defendant's claim is one that should have been raised on direct appeal and is, therefore, barred by Rule 3:22-4(a). Even if considered, however, defendant's sentence was not disparate, despite the five-year difference between the one imposed upon him and his co-defendant. We repeat Judge Freeman's conclusions in this regard:
[T]here are significant justifiable reasons for the disparate sentences. The co-defendant, Taliaferro, in this case pled to a different charge, a degree lower than the defendant. Further, co-defendant, Taliaferro's, lower sentence is justified as a result of the additional requirements that were imposed as part of the plea agreement which included[] a factual statement implicating Tavares, as well as an agreement to testify at trial against Tavares, if necessary. Further, while ultimately both defendants were indicted under the same indictment number for the same incident, the factual statement given by the defendant in addition to the information contained in the police report indicate it was the defendant, Tavares , and not the co-defendant, Taliaferro, who threatened the victim with a gun. Additionally, the Defendant Tavares, and Co-Defendant Taliaferro, did not have similar prior criminal records. The Court in Co-Defendant Taliaferro's case found aggravating factors 3, and 9 and not aggravating factor 6, the extent of the Defendant's prior criminal record and the seriousness of the offenses of which he has been convicted. However, in Defendant Tavares's case, the Court found aggravating factors 3, 6, and 9.
Additionally, Taliaferro was a juvenile when the crime was committed, while defendant was eighteen years old. Given that they entered guilty pleas to offenses different in degree, that one committed himself to testify against the other, and that defendant was identified as the individual who held the weapon during the robbery, we agree that the differences in sentence are supported by the record. See State v. Roach, 146 N.J. 208, 233 (1996) (explaining that disparate sentences are not justified when the defendants are "identical or substantially similar . . . regarding all relevant sentencing criteria"). Hence, it was not ineffective assistance of counsel for defendant's attorney to have negotiated the agreement. If anything, it is noteworthy that the ten-year sentence was the lowest possible for the first-degree crime of carjacking. Since there would not have been any merit to a disparate sentence argument, it was certainly not deficient representation by counsel to fail to raise it. Defendant was not entitled to an evidentiary hearing, as no prima facie case was established. See Cummings, supra, 321 N.J. Super. at 170.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION