March 12, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYSHAUN BRIDGES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-10-1293.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Reisner and Sapp-Peterson.
Defendant appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant's conviction and sentence arose out of defendant's carjacking of his victim at gunpoint. In October 2002, defendant was indicted for first-degree carjacking, N.J.S.A. 2C:15-2 (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Two); second-degree possession of a weapon for an unlawful purposes, N.J.S.A. 2C:39-4(a) (Count Three); third-degree unlawful possession of a weapon, N.J.S.A. 23C:39-5(b), (Count Four); and third-degree theft by receiving a stolen automobile, N.J.S.A. 2C:20-7 (Count Five).
On March 28, 2003, defendant, as part of a negotiated plea, pled guilty to the carjacking count in exchange for the State's agreement to dismiss the remaining charges and to recommend a custodial sentence not to exceed twenty years, together with imposition of an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Eight months later, defendant filed a motion seeking to withdraw the guilty plea. The court denied the motion on November 20, 2003, and on that same date sentenced defendant to twenty years imprisonment in accordance with the plea agreement. On direct appeal, we affirmed and, thereafter, the Supreme Court denied defendant's petition for certification. State v. Bridges, 183 N.J. 257 (2005).
On April 8, 2005, defendant filed an application for post-conviction relief. The PCR judge denied the motion without an evidentiary hearing and entered an order memorializing her decision on September 5, 2006.
On appeal defendant contends:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE.
A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting a defendant's right to counsel under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain relief based upon a claim of ineffective assistance of counsel, a "'defendant must show that counsel's performance was deficient'" and "'that counsel's deficient performance prejudiced the defense.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693).
The Strickland test has been applied to challenges to guilty pleas. State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). To have a guilty plea set aside on the basis of the ineffective assistance of counsel, a defendant must show that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases[.]'" Id. at 457 (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1608, 36 L.Ed. 2d 235, 243 (1973)). The defendant also must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985)).
Here defendant claims that trial counsel never investigated the whereabouts of his co-defendant, George Thomas, who was never apprehended or charged in connection with the matter. The PCR judge found that defendant's contention that his trial counsel was ineffective for not properly investigating the case was nothing more than a bald assertion, which was insufficient to warrant post-conviction relief or an evidentiary hearing in advance of the denial of relief. The court observed that defendant presented no affidavits or certifications, based upon personal knowledge of the affiant, detailing facts that an investigation may have revealed. In State v. Cummings, 321 N.J. Super. 154 (App. Div. 1999), we stated that "when a [PCR] petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Id. at 170. Rule 3:22-1, governing post-conviction proceedings, does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992). The decision to do so is discretionary with the trial court. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Because defendant failed to present the requisite proofs to support his claim of ineffective assistance of counsel, the trial court did not abuse its discretion in denying defendant's petition without first conducting an evidentiary hearing. Preciose, supra, 129 N.J. at 459.
The court also rejected the claim that trial counsel's ineffectiveness was demonstrated by counsel's failure to investigate the seriousness of the victim's injuries. The court noted that defendant pled guilty to carjacking and that proof the victim sustained serious bodily injury was not an element of the offense the State needed to satisfy in order for the court to accept defendant's guilty plea to first-degree carjacking. We agree.
In providing a factual basis for the plea, defendant told the court that he approached the victim, who was seated in the vehicle, and told the victim to get out of the car. He admitted that he had a gun that he showed to the victim and that his purpose in doing so was to threaten the victim. Along with the other requisite elements, the threat or the putting in fear the carjacking victim is sufficient to prove first-degree carjacking. See N.J.S.A. 2C:15-2(a).
The remaining arguments advanced by defendant in support of his petition, namely, his confusion as to the consequences of his plea and the excessiveness of his sentence, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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