September 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARYL TARPLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 04-11-0382.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Messano and Chambers.
Defendant Daryl Tarpley appeals from the March 9, 2007, order that denied his petition for post-conviction relief (PCR). He raises the following arguments on appeal:
DEFENDANT'S POST-CONVICTION RELIEF REQUEST FOR A NEW SENTENCING SHOULD HAVE BEEN GRANTED BECAUSE HIS ATTORNEY WAS INEFFECTIVE.
A. COUNSEL WAS NOT REASONABLY COMPETENT WHEN HE ALLOWED THE COURT TO PUSH UP THE SENTENCING DATE IN THE FACE OF AN ERRONEOUS PRE-SENTENCE REPORT.
B. DEFENDANT WAS PREJUDICED AT SENTENCING BY THE COURT'S RELIANCE ON AN ERRONEOUS PRE-SENTENCE REPORT.
AT THE VERY LEAST, AN EVIDENTIARY HEARING EXPLORING COUNSEL'S FAILURES AT SENTENCING WAS WARRANTED BECAUSE DEFFENDANT ALLEGED A PRIMA FACIE CASE OF INEFFECTIVENESS.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
On February 28, 2005, pursuant to a plea agreement reached with the State, defendant pled guilty to various counts contained in three separate indictments. A sentencing date of April 12, 2005 was set. In the interim, defendant moved for a bail modification pending sentence based upon his mother's serious medical problems. On March 4, 2005, the judge considered the motion and denied it. However, because a presentence investigation (PSI) report had been expeditiously prepared and circulated, the prosecutor suggested that the court proceed with sentencing immediately.
Once the motion for a bail modification was denied, defense counsel, who earlier had characterized the prosecutor's suggestion as a "joint request for sentencing," specifically asked the judge to sentence defendant in accordance with the plea bargain. Defense counsel indicated that one of the entries in the pre-sentence report was erroneous because defendant had never been charged with any offense on that particular date.
The judge then reviewed defendant's prior record and noted defendant had "an extensive criminal record that started back in 1970 when he was a juvenile . . . ." Defendant interrupted and said, "Your Honor, I do not have a juvenile record." Defense counsel indicated that all the entries in the PSI report regarding defendant's juvenile record were actually for a person named "Jerry Tarpley."*fn1 Defense counsel requested that the judge not "consider those charges and consider only his adult record," which he told the judge "[w]e can certainly acknowledge." The judge indicated that it would "take a good portion of the morning to recite those [adult charges] which [were defendant's] including some very serious offenses . . . ." He then sentenced defendant in accordance with the plea bargain.
On August 28, 2006, defendant filed a pro se PCR petition alleging that his "sentences and convictions were . . . based upon incorrect and inaccurate information" regarding his past criminal history. He also noted that "[t]he [c]court  issued an order subsequently stating . . . this information should have not been listed in the PSI report and should be corrected . . . ."*fn2 He contended that the erroneous information influenced the judge's and probation's opinion as to the appropriate sentence.
Defendant's pro se filing was supplemented by a letter brief filed by PCR counsel on or about February 19, 2007, in which the claim of ineffective assistance of trial counsel was first asserted. A hearing was held on the petition on March 9, 2007, before the same judge that had sentenced defendant.
Referencing the exchange we have cited above, the judge noted that he told trial defense counsel the he "would not consider the juvenile record and did not and would not if [defendant] were to be sentenced again." He concluded that trial counsel had not provided ineffective assistance by bringing the matter to his attention and proceeding with the sentence. The judge also concluded that defendant had not been prejudiced by having the erroneous information in the report because "[t]here would have been no difference" in the sentence imposed had that information been excluded. He entered the order under review denying defendant's PCR petition and this appeal ensued.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
We have noted that "[o]nce a defendant has established a prime facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant 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). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." Ibid. (citing State v. Preciose, 129 N.J. 451, 462 (1992)).
We think it abundantly clear that there was no need for an evidentiary hearing in this particular case. Defendant's factual assertions in support of his claim that trial counsel provided ineffective assistance were fully contained in the sentencing transcript. To the extent speculative claims are now raised in defendant's appellate brief, we refuse to consider them. See Cummings, supra, 321 N.J. Super. at 170.
Trial defense counsel did not provide assistance that was professionally deficient. He became aware of errors in the PSI report and brought them to the judge's attention. He urged the judge not to consider the erroneous entries, and the judge agreed that he would not, and in fact did not. Even if we were to conclude that counsel should have, for example, requested an adjournment of the sentencing and the preparation of a revised PSI report, defendant has failed to meet the burden imposed by the second prong of the Strickland/Fritz test. As the judge noted at the PCR hearing, defendant had a significant adult criminal record that fully supported the finding of those aggravating factors utilized by the judge to impose the sentence he did, one that was in full accordance with the plea bargain defendant struck with the State.