January 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TROY DEMBY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 01-02-0350 and 01-05-0866.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Graves and Grall.
Defendant Troy Demby appeals from the denial of his petition for post-conviction relief. He pled guilty to three counts of first-degree robbery, N.J.S.A. 2C:15-1, and possession of a handgun without a permit, N.J.S.A. 2C:39-5b. The charges were included in two indictments and based on two separate criminal episodes - robbery of a cab driver with a toy gun on September 1, 2000 and two robberies committed with an operable handgun in a convenience store on December 30, 2000.
Defendant entered his guilty plea after his motion to suppress the handgun used in the convenience store robbery was denied and trial on those robberies had commenced. In return, the State agreed to seek concurrent sentences for the crimes charged in both indictments and a term of no longer than ten years for robbery of the cab driver. The judge sentenced defendant to two concurrent fifteen-year terms of incarceration for the first-degree robberies committed on December 30, 2000; the sentences for those "violent" crimes are subject to NERA terms of parole ineligibility and parole supervision pursuant to N.J.S.A. 2C:43-7.2.*fn1 The judge also imposed a concurrent ten-year term of incarceration for first-degree robbery of the cab driver, and a concurrent four-year term for possession of a handgun without a permit, N.J.S.A. 2C:39-5b.
On direct appeal, this court affirmed defendant's sentence and the denial of his suppression motion. State v. Demby, No. A-6639-02 (App. Div. Jul. 18, 2005). The Supreme Count denied his petition for certification. 185 N.J. 298 (2005).
At the time of his plea, defendant acknowledged that on September 1, 2000, when he and Darnell Jones got into a taxi cab, they had a toy gun, which they "showed" to the cab driver before the driver surrendered his money. Defendant also admitted that on December 30, 2000, he and Raheem Turner went to a convenience store in Pleasantville. He had a .38 caliber revolver with him, which he "pointed" at the victims when he asked them for money. He took approximately $200.
The police pursued the perpetrators of the convenience store robberies that night. Turner was arrested near the Fox Run condominium complex in Pleasantville, where defendant lives. He gave the officers defendant's name and address, and defendant's mother opened the door when the police knocked. The police questioned defendant, and he surrendered the .38 caliber revolver he had used in the convenience store. Subsequently, the State tested the gun and determined that it was operable.
At the time of his guilty plea, defendant did not contest the State's report on operability.
Defendant was nineteen years old at the time of sentencing. His mother and stepfather both addressed the judge and urged leniency in recognition of defendant's remorse and his youth. In addition, his attorney highlighted mitigating factors. He stressed that defendant had no prior convictions and planned to complete his education and learn a trade. In imposing sentence, the judge considered defendant's age and the fact that these were his first convictions. The judge, however, determined that defendant's three violations of the conditions of probationary terms imposed as a consequence of juvenile adjudications and his prior commitment to the Training School for Boys indicated a risk of recidivism and need for deterrence.
Defendant's application for post-conviction relief was based on a claim of ineffective assistance of counsel. He raised several objections to counsel's performance at various stages of the proceedings, and the trial judge addressed each claim and concluded that defendant did not establish a prima facie case of "deficient performance" or "a reasonable probability" that the result would have been different if counsel had not made "unprofessional errors." State v. Preciose, 129 N.J. 451, 462-64 (1992).
On this appeal defendant's attorney presents the following issues:
I. THE COURT ERRED IN NOT GRANTING THE POST CONVICTION MOTION OF PETITIONER AS HE DID NOT RECEIVE HIS CONSTITUTIONALLY GUARANTEED ASSISTANCE OF COUNSEL.
II. THE COURT ERRED IN NOT GRANTING AN EVIDENTIARY HEARING TO DETERMINE IF PETITIONER RECEIVED HIS CONSTITUTIONALLY GUARANTEED ASSISTANCE OF COUNSEL.
In a pro se supplemental brief, defendant argues:
I. APPELLANT WAS SUBSTANTIVELY DENIED EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL AT THE LAW DIVISION, SINCE SHE FAILED TO FOLLOW THE PROCEDURES ESTABLISHED IN STATE V. WEBSTER, 187 N.J. 254 [(2006),] WHICH DIRECTLY IMPACTED HIS RIGHT TO A FAIR EVIDENTIARY HEARING ON THE ISSUES RAISED IN APPELLANT'S PCR, IN VIOLATION OF HIS RIGHTS UNDER N.J. Const. art. 1, [¶] 10.
After review of the record in light of the arguments presented, we are convinced that none of the issues raised warrant discussion beyond the brief comments that follow.
Defendant claimed that his trial attorney failed to investigate and present a proper defense at the suppression hearing or at trial, but he did not provide any information about how an investigation would have produced evidence useful to his defense. Relying on State v. Cummings, 321 N.J. Super. 154, 171 (App. Div.), certif. denied, 162 N.J. 199 (1999), the judge concluded that defendant's bare allegations, unsupported by an assertion of information that counsel allegedly failed to uncover, were insufficient. That determination was correct.
It was also appropriate for the judge to reject defendant's claim that a reasonably competent attorney would have urged the judge to sentence defendant to an indeterminate term pursuant to N.J.S.A. 2C:43-5. That argument was not available, because a judge has no discretion to impose a sentence in accordance with N.J.S.A. 2C:43-5 in a case where N.J.S.A. 2C:43-7.2 mandates NERA terms of parole ineligibility and parole supervision. State v. Corriero, 357 N.J. Super. 214, 218 (App. Div. 2003).
Defendant further contended that the judge and his attorney erred in concluding that his convenience store robberies were first-degree robberies and subject to NERA. That argument was based on defendant's misunderstanding of the law.
Proof of injury is not essential for conviction of first-degree robbery; a threat of bodily injury by one armed with a deadly weapon suffices. N.J.S.A. 2C:15-1. Similarly, mandatory terms of NERA parole ineligibility and parole supervision are not limited to cases in which the victim is injured. In December 2000, when defendant committed the robberies in the convenience store, NERA parole terms were required for any "violent crime" of the first or second degree. N.J.S.A. 2C:43-7.2a (prior to amendments enacted with the passage of L. 2001, c. 129, § 1). The statute defined "violent crime" to include "any crime in which the actor . . . uses or threatens the immediate use of a deadly weapon." Ibid. Defendant admitted that he pointed his .38 caliber revolver at the victims in the convenience store when he asked them for money, and he did not contest the State's evidence establishing that the handgun was operable. Those facts provided an adequate basis for a first-degree robbery conviction and for NERA terms of parole ineligibility and parole supervision. See ibid.; State v. Meyer, 327 N.J. Super. 50 (App. Div.), certif. denied, 164 N.J. 191 (2000); see also N.J.S.A. 2C:15-1.
Defendant also argued that his attorney's representation at the time of sentencing was deficient for failure to urge mitigating factors based on defendant's difficult youth, drug abuse and support available to him in the community. The judge determined that he would not have imposed a lesser sentence if defendant's substance abuse had been brought to his attention because defendant had denied habitual use of substances during his pre-sentence interview. Moreover, defendant's attorney did not ignore the mitigating facts. By providing statements from defendant's mother and stepfather, stressing that this was defendant's first conviction for a crime and pointing to defendant's prospects for leading a productive life, defense counsel emphasized all of the facts that militated in favor of leniency.*fn2
Defendant also asserted that his attorney gave inaccurate and incomplete advice at the time of his guilty plea. According to defendant, the attorney told him that "he did not think [that defendant] would receive the maximum sentence of fifteen year[s] . . . in prison" and did not tell him that he could "go to trial instead of entering into a plea agreement." The record does not support the claims. First, defendant received the presumptive term for a crime of the first degree. N.J.S.A. 2C:44-1f(1)(a); see State v. Adams, 194 N.J. 186, 209 (2008). Second, because defendant entered this guilty plea during the course of his trial, he could not demonstrate that he was unaware of his right to a trial. Third, as the judge recognized, at the time of the plea the court advised defendant that he could receive a term of incarceration for as many as twenty years if he pled guilty. Accordingly, even if defense counsel had predicted a lower sentence, defendant could not have been misled about the sentence that could follow his guilty plea.
In sum, it is apparent that the facts, viewed in the light most favorable to defendant, did not establish that the result of the suppression hearing, guilty plea or sentencing proceeding would have been different but for counsel's deficient performance. Preciose, supra, 129 N.J. at 462-64. An evidentiary hearing was not required, and the petition was properly denied. Ibid.
Defendant's objections to the performance of the attorney who represented him on his petition for post-conviction relief are not supported by the record. Defendant reviewed the attorney's brief and wrote a letter suggesting revisions. At the hearing, the attorney forcefully argued every issue defendant mentioned in defendant's letter, and contrary to defendant's claim, the attorney's brief included arguments based on the absence of evidence of bodily injury. Defendant is not entitled to post-conviction relief because his attorney argued but did not brief the question of his trial attorney's failure to seek an indeterminate sentence. As discussed above, there was no legal foundation for that claim and the argument could not have changed the outcome.
We also reject defendant's claim that State v. Webster, 187 N.J. 254, 257-58 (2006), required defense counsel to amend the brief to excise arguments defendant deemed unpersuasive and to give greater emphasis to other points. Webster addresses matters of substance, not style.