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State v. Tatum

February 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT
v.
MICHAEL TATUM, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 01-12-0685.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2009

Before Judges R. B. Coleman and Simonelli.

Defendant Michael Tatum appeals from the denial of his post-conviction relief (PCR) petition. On appeal, defendant contends that trial counsel was ineffective for recommending that he plead guilty; for failing to negotiate a plea agreement; and for failing to take the case to trial. Defendant also contends, for the first time, that appellate counsel was ineffective for failing to raise issues relating to the propriety of the guilty plea.*fn1 And finally, defendant contends that PCR counsel was ineffective for failing to file a substantive brief on all available issues, specifically appellate counsel's deficiency. We reject these contentions and affirm.

The following facts are summarized from the record. On November 27, 2001, defendant, age eighteen, and Learde Jenkins, a juvenile, planned a robbery of the Foot Locker in Franklin Township to obtain money to purchase drugs. Wearing masks and armed with knives, the two entered the store. Defendant put his knife to the store manager's stomach and ordered her to empty the cash register. Terrified customers inside the store ran out. Jenkins then yelled to defendant, "let's go," and they both fled the store with no money.

Store employees called the police and gave descriptions of defendant and Jenkins. The two were arrested within minutes of fleeing the store and evidence was discovered. After receiving his Miranda*fn2 warning, defendant admitted that he conspired with Jenkins to rob the store.

Defendant and Jenkins were indicted for first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count three). Defendant retained private counsel to represent him. He pled guilty to all charges without a plea agreement. Jenkins opted for a trial.

At the plea hearing,*fn3 defendant acknowledged that he decided to plead guilty after discussing with trial counsel the evidence against him and possible defenses. Defendant stated his understanding that there was a presumption of incarceration on count one, that he faced a prison term of ten to twenty years on count one with an eighty-five percent period of parole ineligibility, and that he faced five years on count two and ten years on count three with up to half of those terms to be served without parole. Defendant also said the he understood that there was no plea bargain agreement. Defendant expressed his desire to argue for a lesser sentence rather than enter into a plea agreement. Defendant also acknowledged that he was satisfied with the legal advice he received and that he had reviewed the plea forms with his attorney, which contained no plea agreement.

At sentencing, trial counsel acknowledged defendant's extensive juvenile record, including theft and assault, and numerous failed opportunities at rehabilitation and probation, and emphasized certain mitigating factors and argued for the lowest possible sentence. Judge Edward Coleman, who had presided at Jenkins' trial, noted that by advising defendant to plead guilty, trial counsel "did the right thing because it was an overwhelming evidence case with regard to [defendant and Jenkins]. [Defendant was] virtually caught at the scene."

After balancing the aggravating and mitigating factors and considering that this was defendant's first adult indictable conviction, the judge merged counts two and three into count one and sentenced defendant on count one to a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility. The judge also imposed the appropriate assessments and penalty.

Defendant appealed his sentence. We heard the appeal on our excessive sentencing calendar and affirmed on March 12, 2003.

Jenkins was tried as an adult and convicted. Defendant learned that Jenkins' guilty verdict was overturned on appeal, and that, prior to retrial, he negotiated a ten-year term of imprisonment with an eighty-five percent period of parole ineligibility. As a result, in July 2003, defendant filed a pro se PCR petition. In a brief, prepared by assigned counsel, defendant pointed to the disparity between his and Jenkins' sentences and argued, in part, that due to ...


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