Opinion
DOCKET NO. A-3701-11T2
10-30-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANGELO WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE COMMITTEE ON OPINIONS
Before Judges Fisher and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0261.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Angelo Williams appeals from the December 15, 2011 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Although indicted for murder, defendant pleaded guilty to first-degree robbery, N.J.S.A. 2C:15-1, for his participation in a beating and robbery that led to the death of the victim. Defendant admitted when pleading guilty that he intentionally struck the victim multiple times in order to take the victim's wallet. He acknowledged that he caused injuries serious enough to place the victim in the hospital and that those injuries ultimately led to the victim's death. Pursuant to the plea agreement, defendant was sentenced to an eighteen-year term, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed from the sentence. We affirmed the length of the sentence, but vacated the sentencing court's imposition of $22,000 in restitution, remanding only for a restitution hearing.
The crime took place in Jersey City on July 16, 2008. Police responded to a report of a robbery and found the victim conscious. The victim stated he was robbed and beaten by two young black males. He was taken to Jersey City Medical Center to treat bruises, swelling and lacerations and died two days later from his injuries. An autopsy report listed the victim's cause of death as "multiple blunt force injuries" with a "contributory cause" of a preexisting seizure disorder. A supplemental report stated that at autopsy the victim had a broken nose, a sutured laceration, and multiple visible "contusions" to the face, head, torso and extremities.
After being identified as one of the participants by several witnesses, defendant acknowledged his involvement to the police.
Defendant raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF COUNSEL'S FAILURE TO COMPREHENSIVELY REVIEW ALL RELEVANT DISCOVERY IN CONJUNCTION WITH THE STATE'S CASE AGAINST HIS CLIENT, THE DEFENDANT PLED GUILTY TO A FIRST DEGREE ROBBERY DESPITE THE FACT THE OFFENSE ONLY APPEARED TO REFLECT THE REQUISITE ELEMENTS OF A SECOND DEGREE ROBBERY.
C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT SENTENCING.
POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE NO FACTUAL BASIS WAS PROVIDED AT THE TIME THE PLEA WAS ENTERED.
A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987).
When defendant asserts ineffectiveness that results in a guilty plea, the first prong is met where the defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
A trial court may hold an evidentiary hearing to determine whether counsel was ineffective. R. 3:22-10; see also State v. Preciose, 129 N.J. 451, 462 (1992). However, the trial court should only hold an evidentiary hearing "if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. In order to establish a prima facie case, defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. Absent defendant's showing of a prima facie case, an evidentiary hearing is not required. Claims must be more than "bald assertions." State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div.), certif. denied, 162 N.J. 199 (1999) .
We note that by the time defendant filed his PCR petition the attorney who handled his plea and sentencing had passed away, thus severely limiting the utility of an evidentiary hearing.
Defendant argues that because he was not armed during the robbery and because he only inflicted minor injuries on the victim, his lawyer should not have permitted him to plead guilty to first-degree robbery. First-degree robbery requires causing serious bodily injury or the use of a weapon in the course of a theft. N.J.S.A. 2C:15-1b. Serious bodily injury includes "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b. Here the victim died, not due to a seizure disorder, but due to his injuries from the robbery. Defendant produced no evidence to the contrary in his PCR petition. Thus, the evidence supported the crime of first-degree robbery as well as the more serious murder charges dismissed by the State pursuant to the plea agreement.
Defendant is entitled to effective counsel at sentencing and entitled to argue in a PCR petition that he received ineffective representation at the sentencing hearing. See State v. Hess, 207 N.J. 123, 152-53 (2011) (explaining that a plea agreement preventing defense counsel from arguing mitigating factors at sentencing is impermissible and may be challenged on PCR). Defendant's right to raise the issue of ineffective sentencing counsel on PCR is separate and apart from his right to a direct appeal arguing the excessive nature of the sentence imposed.
Defendant argues that his sentencing counsel was ineffective by failing to argue the applicability of the mitigating factor contained in NJSA 2C:44-1b(11), that "the imprisonment of the defendant would entail excessive hardship to himself or his dependents." Defendant had two young children, three and six years old at the time he was sentenced, and he had lived with their mother for two years. He indicated he gave the children's mother money "as needed." This information is contained in the presentence report. The PCR judge, who had sentenced defendant, stated that he would not have found mitigating factor eleven had it been argued at the time of sentencing. Certainly having children does not in itself support this mitigating factor. State v. Kelly, 97 N.J. 178, 219-20 (1984); see also State v. Dalziel, 182 N.J. 494, 505 (2005) (explaining that the trial court properly rejected mitigating factor eleven because the defendant offered no evidence to show the length of his sentence would be an excessive hardship on his children). Defendant provided no evidence of particular hardship to his children stemming from his incarceration.
The remaining issues are without sufficient merit to require discussion in a written decision. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION