October 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY LYONS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-12-3692.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2008
Before Judges A. A. Rodríguez and C. L. Miniman.
Defendant Jeffrey Lyons appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
In May 2001, defendant entered into an agreement with the State to plead guilty to second-degree aggravated assault on Yvonne Harris, Jonathan Park and Christina Moses, N.J.S.A. 2C:12-1b(1) and two counts of third-degree terroristic threats upon Moses, N.J.S.A. 2C:12-3(a)-(b). The State agreed to dismiss several related charges and to recommend concurrent terms aggregating ten years with a NERA*fn1 parole disqualifier.
Consistent with the agreement, Judge David G. Eynon imposed concurrent terms aggregating ten years with a NERA parole disqualifier and a three-year period of parole supervision. Defendant did not file a direct appeal. Rather, more than three years later, he filed, while represented by private counsel, a PCR petition. Defendant's verification of his PCR petition, which was provided to us by respondent rather than defendant, fails to assert any specific grounds for relief. The verification is very sparse. It states the following substantive allegations:
I make this application for post-conviction relief in light of Certain Supreme Court cases which were decided prior to the date of my offense. I also certify that this type of application is permissible by virtue of a decision by the Supreme Court of New Jersey decided prior to the date of my conviction.
In further compliance with Rule 3:22-8, I provide the following information:
(a) The Indictment Number relevant to this matter is 3692-12-01. Indictment Number 3692-12-00 was resolved by way of a plea of guilty to count eleven, Aggravated Assault (second degree) on May 21, 2001, before the Honorable David G. Eynon, J.S.C.
(b) On July 6, 2001, I was sentenced by the Honorable David G. Eynon, J.S.C. to ten years New Jersey State Prison, 85% to be served without parole.
(c) There have been no appellate proceedings relative to this conviction.
(d) There have been no post-conviction proceedings relative to this conviction.
Judge Thomas A. Brown, Jr. heard oral argument and denied the PCR petition. There was no evidentiary hearing.
On appeal, defendant contends:
THE COURT ERRED IN ACCEPTING DEFENDANT'S PLEA AGREEMENT BECAUSE COUNSEL FAILED TO ESTABLISH A FACTUAL BASIS FOR A PLEA TO SECOND DEGREE AGGRAVATED ASSAULT PURSUANT TO N.J.S.A. 2C:12-1B(1).
THE SENTENCE IMPOSED BY THE COURT PURSUANT TO THE DEFENDANT'S PLEA AGREEMENT WAS ILLEGAL AND EXCESSIVE.
We reject these contentions.
First, we note that they are procedurally barred. Where there was no direct appeal, any matter which could have been raised on direct appeal cannot be grounds for post-conviction relief. R. 3:22-2; R. 3:22-4. Thus, any matter which could have been but was not raised in any prior proceedings or on any appeal cannot be a ground for relief, unless it could not reasonably have been raised before or unless denial of relief would be unconstitutional. R. 3:22-4. Here, defendant has made no showing that he could not have challenged the factual basis for his plea or the sentence on direct appeal.
Second, on the merits, defendant should not prevail in his argument that he did not admit causing serious bodily injury to Harris, Park and Moses. Judge Brown, based on his review of the record, made the following findings:
In the instant case, at the plea hearing defendant stated that on the day of the assault he got into a fight with the victims and he, "[g]ot the best of them." Defendant then stated that he did not know the extent of the injuries he caused to the victims.
The prosecutor then recited various injuries to the victims, including lacerations to the face, closed head injury wounds, stitches and a fractured nose. Defendant then stated that he had no evidence that those were not the injuries suffered by the victims.
The defendant, as well as defendant's counsel on behalf of the defendant also acknowledged that hitting a person with a stereo speaker could cause serious bodily injury. Although the defendant did not specifically recite the injuries he cause[d] the victims to sustain, he did not refute the prosecutor's characterization or proof of those injuries.
In addition, during the plea colloquy, the defendant, himself, acknowledged that hitting a person with a stereo speaker could cause serious bodily injury and, thereby, would be considered a deadly weapon. The defendant did not, specifically, state that he hit the victims with the stereo speaker, but he acknowledged that, "[h]e got the best of them" in the fight. In addition, he did not object to the prosecutor's characterization that the injuries were caused by a stereo speaker, which was repeatedly thrown at them by the defendant.
We agree with the judge that there was a sufficient factual basis to accept the plea. As the Supreme Court has noted:
[B]ecause different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, a factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.
[State ex rel. T.M., 166 N.J. 319, 327 (2001).]
Defendant also contends: THE DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.
A charge of ineffective assistance of counsel must be evaluated in light of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674. Pursuant to Strickland, a defendant seeking to vacate a conviction on the ground of ineffective assistance of counsel has the heavy burden of proving both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Representation is constitutionally deficient only when it falls "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
Prejudice is shown by proof creating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. The same standard has been adopted by the New Jersey Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987).
Here, from our review of the record, we conclude that defendant has shown neither deficient performance nor prejudice. There is no basis for granting the petition. For these reasons, we reject defendant's final contention:
DEFENDANT'S PETITION FOR [PCR] SHOULD BE GRANTED.