December 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS BACON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-04-0592.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Grall and Chambers.
Defendant Thomas Bacon appeals from an order denying his petition for post-conviction relief. We affirm substantially for the reasons stated by Judge Kevin G. Callahan in a thorough written opinion issued with the order denying relief.
On October 22, 1997, the grand jurors for Hudson County returned a twelve-count indictment charging defendant, Quaran McClary, Rajohn Abdul Gerald and Andrew Peay with commission of the following crimes: murder, N.J.S.A. 2C:11-3a(1)-(2); felony murder, N.J.S.A. 2C:11-3a(3); conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; two counts of armed robbery, N.J.S.A. 2C:15-1; aggravated assault, N.J.S.A. 2C:12-1b(4); receipt of a stolen motor vehicle, N.J.S.A. 2C:20-7; eluding, N.J.S.A. 2C:29-2b; two counts of possession of a handgun with the purpose of using it unlawfully against another person, N.J.S.A. 2C:39-4a; and two counts of possession of a handgun without a permit, N.J.S.A. 2C:39-5b.
Pursuant to an agreement with the State, defendant entered a plea of guilty to armed robbery of Jerrel Latimore and possessing a handgun with the purpose of using it unlawfully against Kevin Rogers. He entered the pleas after a jury found co-defendant McClary guilty of all crimes charged in the indictment, including murder. In return for defendant's pleas, the State promised to dismiss the remaining charges and recommended concurrent sentences as follows: for first-degree robbery, an eighteen-year term of incarceration, subject to a nine-year term of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, and a parole ineligibility term equivalent to eighty-five percent of the sentence pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, § 2); for second-degree possession of a firearm with purpose to use it unlawfully against another person, a ten-year term of incarceration subject to a five-year term of parole ineligibility pursuant to N.J.S.A. 2C:43-6c. Judge Callahan, who accepted defendant's guilty pleas, fully explained the mandatory, statutory terms of parole ineligibility and special parole supervision. In questioning defendant about his understanding of the recommended sentence, the judge clearly explained and made certain that defendant understood the impact of NERA. Defendant was subsequently sentenced in accordance with the agreement.
We affirmed defendant's sentence on a direct appeal filed and argued in accordance with Rule 2:9-11. After the Public Defender declined to file a petition for certification on defendant's behalf, defendant filed his petition for post-conviction review, which Judge Callahan denied on March 29, 2006.
The following description of the conduct that led to defendant's convictions is based upon the factual basis he provided at the hearing on his guilty plea. Defendant traveled with his co-defendants from Newark to Jersey City, where they planned to commit a robbery. Defendant and co-defendant McClary carried guns. They saw Latimore and Rogers on a street in Jersey City. Defendant had a 357 magnum handgun, which he pointed at Rogers and used to shoot out the tire on a car. He was standing within ten feet of Rogers when he fired the gun. He took money from Rogers. Defendant also participated in the robbery of Latimore, who died as a consequence of a gun shot fired by co-defendant McClary. Defendant took money from Latimore. Neither co-defendant Gerald nor co-defendant Peay possessed a firearm during the course of the robbery.
On appeal from the denial of his motion for post-conviction relief, defendant raises the following arguments:
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 WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES GOVERNING PETITIONS FOR POST CONVICTION RELIEF, CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND EVIDENTIARY HEARINGS.
B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO COMPREHENSIVELY ADDRESS THE APPALICABILITY OF CERTAIN MITIGATING FACTORS AS WELL AS THE INAPPLICABILITY OF CERTAIN AGGRAVATING FACTORS AT THE DEFENDANT'S SENTENCING.
C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AS A RESULT OF TRIAL COUNSEL'S FAILURE TO ADDRESS THE CLEARLY DISPARATE NATURE OF THE DEFENDANT'S SENTENCE WITH THAT OF CO-DEFENDANTS PEAY AND GERALD.
D. THE TRIAL COURT ERRED BY FAILING TO AFFORD THE DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
II. THE DEFENDANT'S CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS PROPERLY COGNIZABLE ON APPEAL.
Defendant's arguments lack sufficient merit to warrant extended discussion beyond that provided in Judge Callahan's comprehensive written decision. R. 2:11-3(e)(2). We add only the following brief comments.
Defendant produced no evidence or claim that required an evidentiary hearing on his petition for PCR relevant to the question of the adequacy of his attorney's performance at the time of the plea or sentencing. An evidentiary hearing on a petition is required only when necessary to resolve disputed facts that, when viewed most favorably to defendant, would entitle the defendant to relief. See State v. Marshall, 148 N.J. 89, 158 (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Defendant pointed to no facts that would permit the judge to find that his sentence would have been more favorable if trial or appellate counsel took additional or different action. The concurrent sentence and aggregate term of defendant's sentence was consistent with his very favorable plea agreement, and his "use of a deadly weapon," a handgun, required imposition of the NERA and Graves Act components of his sentence. N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, § 2); N.J.S.A. 2C:43-6c. Thus, there was no basis for a finding of prejudice, which is a critical element of a claim of ineffective assistance of counsel, and no need for a hearing on counsel's performance. See State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984)); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the standard for measuring ineffective assistance enunciated by the Supreme Court in Strickland).
There is no foundation for defendant's claim of impermissible disparity between his sentence and the sentences received by two of his co-defendants, Peay and Gerald. Peay did not plead guilty to a crime of the first degree and received an aggregate sentence of ten years. Although he did not have a gun during the course of the robberies, Gerald pled guilty as an accomplice to first-degree armed robbery, and received an aggregate sentence of twelve years. Defendant, in contrast, freely admitted to possession and actual use of a handgun to threaten Rogers and to firing that gun during the course of the robberies. The only co-defendant, other than defendant, who possessed and used a gun was McClary, who was convicted of murdering Latimore. In contending that his sentences is longer than the sentences received by his co-defendants, defendant fails to mention McClary's sentence. Any disparity between defendant's sentence and the sentences received by Gerald and Peay was justified and warranted on the basis of their respective contributions to the commission of the crimes.
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