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State v. Posey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRANCE L. POSEY,*FN1 DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment Nos. 02-02-0077 and 02-02-0078.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 13, 2008

Before Judges Simonelli and King.

Defendant Terrance L. Posey appeals from the order of March 15, 2007, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant raises the following arguments:

POINT I.

THE POST-CONVICTION RELIEF COURT FAILED TO CONSIDER DEFENDANT'S INEFFECTIVENESS OF COUNSEL CLAIM UNDER THE CORRECT STANDARD IN DETERMINING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II.

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF COUNSEL.

POINT III.

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).

We reject these arguments and affirm.

Pursuant to a plea agreement, defendant pled guilty under indictment number 02-02-00077-1 (the first indictment) to first degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); second degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count two); third degree terroristic threats, contrary to N.J.S.A. 2C:12-3a (count three); and fourth degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(4) (count four). Under indictment number 02-02-00078-1 (the second indictment), defendant pled guilty to second degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7b (count one); and third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b (count two). The State did not recommend a sentence.

The plea agreement called for a maximum twenty-year term of imprisonment with a seventeen-year period of parole ineligibility. The court imposed an eighteen-year term of imprisonment with a fifteen-year, four-day period of parole ineligibility on count one of the first indictment, and a concurrent eight years with a four-year period of parole ineligibility on count one of the second indictment. All other counts were merged.

Defendant appealed his sentence. The appeal was heard on our excessive sentence calendar. We affirmed. Defendant then filed the PCR petition, contending trial counsel was ineffective because despite that the plea agreement permitted a sentence in excess of ten years, counsel advised him that he would not be sentenced to more than ten years. Defendant also contends PCR counsel was ineffective for failing to obtain an affidavit from trial counsel regarding the trial counsel's sentencing advice.

Based upon our careful review of the record, we conclude that defendant's contentions that his trial and PCR counsel were ineffective are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comment.

To succeed on a claim of ineffective assistance of counsel, defendant must establish that counsel's performance was seriously deficient and that the deficient performance prejudiced his right to a fair disposition of the charges. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Defendant has failed to meet these requirements as to either his trial or PCR counsel. Defendant fully understood the consequences of his plea, and was well aware he faced a twenty-year term imprisonment with a seventeen-year period of parole ineligibility. He received a lesser sentence.

Affirmed.


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