July 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-04-0415-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 16, 2009
Before Judges Lisa and Collester.
Defendant appeals from the July 3, 2008 order of Judge Richard J. Geiger denying his petition for post-conviction relief (PCR). We affirm.
In April 2004, defendant Michael Williams and his co- defendant were charged in multiple counts of first-degree robbery, second-degree aggravated assault, unlawful possession of a weapon (handgun or shotgun), third-degree theft, second- degree eluding, fourth-degree resisting arrest and second-degree conspiracy to commit robbery. On December 21, 2004 defendant entered a retraxit plea of guilty to three counts of first- degree robbery and two counts of third-degree theft. In exchange for the pleas of guilty, the State agreed to dismiss the remaining charges and recommended concurrent sentences on the first-degree robberies to a term of fifteen years with eighty-five percent parole ineligibility under the No Early Release Act (NERA). The State further agreed to recommend a maximum of five years on the theft counts to run concurrent with each other but consecutive to the term imposed on the robbery counts. As part of the plea agreement defendant also waived his right of appeal of his sentence. Thereafter, on February 10, 2005, Judge Geiger followed the plea agreement by imposing three concurrent terms of fifteen years with NERA on each of the robbery counts and five-year terms on the theft counts concurrent with each other but consecutive to the term imposed on the robbery counts.
Defendant did not file a direct appeal from his convictions and sentence. However, on August 14, 2007, he filed a pro se PCR application, and on March 17, 2008, following appointment of counsel, a verified petition for PCR was filed which argued that defendant received ineffective assistance of counsel at sentencing which resulted in an excessive sentence. Judge Geiger denied the application for an evidentiary hearing and denied defendant's PCR, stating in part:
Now, while it is true that trial counsel offered little on the record in terms of arguing against aggravated factors, or in favor of mitigating factors, or the extra burden that the No Early Release Act places on the length of defendant's prison term, defense counsel, Mr. Kramer, clearly worked to secure an advantageous, beneficial plea agreement for this defendant, including a much shorter sentence than he faced if convicted at trial, and dismissal of some 20 counts of the various indictments. . . . defendant pled guilty to only four of those 24 charges with the remaining 20 charges dismissed. With those four charges, defendant faced a possible maximum prison term of 70 years, with 51 years parole ineligibility. Under the negotiated plea agreement, however, defendant will actually serve a maximum of 20 years in prison with only 12 years, nine months, and three days' parole ineligibility.
In this PCR petition, defendant seems to disregard the considerably favorable deal that he received, despite pleading guilty to three first-degree armed robberies, and two third-degree theft offenses. He received this plea agreement in large part through the successful efforts of his trial counsel.
And, defendant has certainly not established that his consecutive sentencing for the theft charges was either excessive, inappropriate, unduly harsh, or that anything that his counsel could have said during the sentencing hearing, in terms of emphasizing mitigating factors, or arguing against aggravated factors that were found would have changed the result.
Indeed, this Court finds that no such change in result would have occurred. Indeed, this defendant, through his defense attorney, negotiated this whole deal. It would have been anomalous to some extent for his defense attorney to work so hard to obtain this very favorable plea agreement for the defendant, favorable by dismissing 20 out of 24 charges, favorable by most of the charges running concurrently, and favorable by receiving what was then the presumptive sentence on the robberies, as well as other factors that were favorable to the defendant, and then come in Court on the date of the sentencing and argue that the Court should deviate from that very negotiated sentence when it was already so favorable.
At the entry of his plea on December 12, 2003, defendant admitted the following. He entered the Indian Fields Market in Bridgeton with his co-defendant both carrying shotguns. They pointed their guns at people in the market then demanded and received money from them. They made their escape in a Ford Windstar, having stolen the vehicle earlier. Five days later, while wearing a ski mask, defendant and his co-defendant entered a deli and again robbed persons at gunpoint. The day following, again wearing a ski mask and carrying a handgun together with his co-defendant armed with a shotgun, he entered a Sunoco mini-mart and obtained money from persons at gunpoint.
Following rejection of this argument and dismissal of the PCR by Judge Geiger, defendant appealed and asserts the following arguments:
POINT I - DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF THE U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, ¶ 10.
POINT II - DEFENDANT'S POST-CONVICTION RELIEF CLAIM IS NOT PROCEDURALLY BARRED.
POINT III - THE POST-CONVICTION RELIEF COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING.
Defendant argues that his trial counsel rendered ineffective assistance at the time of sentence by simply asking the judge to follow the plea agreement and not vociferously arguing that defendant should receive a lesser sentence.
Defendant's argument has no merit.
We affirm substantially for the reasons set forth by Judge Geiger in his oral decision of July 2, 2008. To establish a claim of ineffective assistance of counsel the defendant must satisfy the two-pronged Strickland/Fritz test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987).
He must show that counsel "made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). The second prong requires that the defendant show a "reasonable probability" that the deficient performance affected the outcome. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Defendant satisfies neither prong.
We agree with Judge Geiger that under these facts as set forth during the plea hearing, the plea agreement negotiated by defendant's trial attorney was very favorable to the defendant and that the attorney rendered effective service for his client.
Moreover, as stated by Judge Geiger, defendant was unable to show that he suffered prejudice by the alleged deficient performance of his attorney or any reasonable probability of a more favorable sentence. Fritz, supra, 105 N.J. at 58.
Since defendant did not make a prima facie showing of ineffective assistance of counsel, he was not entitled to a plenary hearing. State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006); State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000), certif. denied, 192 N.J. 66 (2007).
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