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State v. Worthy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 15, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN WORTHY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 98-01-0047, 97-07-1803.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2009

Before Judges Rodríguez and Lyons.

Defendant Brian Worthy appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In March 1999, defendant pleaded guilty to third-degree eluding, N.J.S.A. 2C:29-2b; and third-degree escape, N.J.S.A. 2C:29-5a. The State agreed to recommend concurrent sentences not to exceed five years with two-and-one-half years of parole ineligibility; and to dismiss a third charge of receiving stolen property (an automobile). The agreement clearly indicates that, although the sentences would run concurrent with each other, they would run consecutive to a term that defendant was already serving.

Defendant appealed his sentence. We affirmed. A-5086-98T4 (App. Div. December 14, 1999). Defendant asserts that he sought certification. However, there is no indication that the Supreme Court ever received such a petition.

More than seven years after the conviction, defendant filed a first petition for post-conviction relief (PCR). The PCR judge assigned an attorney. At oral argument, the judge denied the PCR petition because it was time-barred.

Defendant now appeals contending:

DEFENDANT'S PETITION FOR [PCR] SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL, WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF PCR COUNSEL. THE TIME BAR OF R. 3:22-12 SHOULD NOT HAVE BEEN APPLIED TO DEFENDANT'S PETITION FOR [PCR].

THE FAILURE OF TRIAL COUNSEL TO COMMUNICATE WITH DEFENDANT CAUSED DEFENDANT TO BE SURPRISED BY THE PLEA AGREEMENT, TO FEEL PRESSURED INTO PLEADING GUILTY, AND TO ACCEPT A PLEA THAT RESULTED IN CONSECUTIVE SENTENCES, DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

TRIAL COUNSEL FAILED TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SENTENCE HEARING.

A. Counsel Failed To Object When The Trial Court Allowed Defendant To Proceed Pro Se Without Any Inquiry From The Court.

B. The Complete Failure of Trial Counsel To Speak On Defendant's Behalf At The Sentence Hearing Constituted Ineffective Assistance of Counsel.

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

After a careful review of the evidence and governing authorities, we determine that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Although defendant argues that this appeal should not have been dismissed as time-barred, he makes no showing that the five-year time limitation set by Rule 3:22-12(a) should not apply. In short, nothing in the petition that sets forth sufficient facts to find "excusable neglect."

We also find no basis to conclude that trial or PCR counsel were ineffective, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). Nor do we find that defendant was coerced or misled into entering the plea agreement. Moreover, the negotiated disposition reduced defendant's exposure from ten years to five years. It is highly unlikely that defendant would have rejected this offer. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370 88 L.Ed. 2d 203, 210 (1985) (applying the Strickland standard to a guilty plea case).

Affirmed.

20090715

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