November 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
YERO TAKUMA A/K/A ANDREW GRIFFITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 84-05-1653 and 84-05-1654.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Graves and Lyons.
Defendant Yero Takuma, who is also known as Andrew Griffith, appeals from an order dated February 29, 2008, denying his petition for post-conviction relief (PCR). We affirm.
On December 10, 1984, defendant pled guilty to felony murder in violation of N.J.S.A. 2C:11-3(a)(3), and three other charges contained in Essex County Indictment No. 84-05-1653. The victim, Preston McGhee, a cab driver, was robbed, shot, and killed on February 13, 1984. The negotiated plea agreement included Indictment No. 84-05-1654, which charged defendant with the murder of Edmond Leslie, who was also shot and killed by defendant on the same date, in a separate, unrelated incident. With regard to that indictment, defendant pled guilty to a lesser included offense of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4. Defendant committed these offenses when he was sixteen years old. The Family Part waived jurisdiction to the Law Division. See State v. R.G.D., 108 N.J. 1, 11 (1987) ("Juveniles charged with the crimes of murder, robbery, sexual assault, and similar offenses set forth in N.J.S.A. 2A:4A-26 are the primary candidates for waiver to the adult courts.").
On January 18, 1985, defendant was sentenced in accordance with the plea agreement to life in prison with thirty years of parole ineligibility for felony murder. He received concurrent sentences for the remaining counts of Indictment No. 84-05-1653. Defendant was also sentenced to a concurrent ten-year prison term for aggravated manslaughter and the remaining counts of Indictment No. 84-05-1654 were dismissed.
After defendant appealed his sentence, the matter was placed on an excessive sentence calendar. R. 2:9-11. On November 19, 1985, this court merged defendant's conviction for robbery with his conviction for felony murder and the concurrent sentence for robbery was vacated. In addition, we affirmed defendant's sentence for felony murder.
In a petition for PCR filed in April 2007, more than twenty-two years after the entry of his judgment of conviction, defendant claimed his trial counsel was ineffective for incorrectly advising him regarding the sentence he would receive under the plea agreement. Defendant also claimed he "didn't understand he was waiving all [of] his rights" when he entered his guilty pleas. Following oral argument on February 29, 2008,*fn1 the court ruled that defendant's petition was time-barred because it was not filed within the five-year period under Rule 3:22-12(a), and defendant failed to show either "excusable neglect" or "exceptional circumstances" to justify an extension of that time. State v. Afanador, 151 N.J. 41, 52 (1997). Nonetheless, the trial court addressed the merits of defendant's petition, and we agree with its conclusions.
As the trial court noted, when defendant entered his guilty pleas he was repeatedly questioned regarding his understanding of the charges, the rights that he was giving up, and the terms of the plea agreement. Moreover, defendant repeatedly testified he had enough time to discuss the plea agreement with his attorney, he was entering his guilty pleas voluntarily, and he was satisfied with the legal services his attorney provided. Under these circumstances, the court found that defendant "understood the charges as well as the consequences of his plea, as well as the fact that he could have had two life sentences if they were [to] run consecutively." Thus, the court correctly concluded from the colloquy during defendant's plea hearing on December 10, 1984, that his guilty pleas were entered freely and voluntarily and with an understanding of the nature of the charges and the consequences of the pleas. See State v. McQuaid, 147 N.J. 464, 486 (1997) ("Rule 3:9-2 requires that a defendant who pleads guilty do so voluntarily, knowingly, and intelligently.").
On appeal from the denial of his petition, defendant presents the following arguments:
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED.
A. DEFENDANT'S PETITION SHOULD NOT HAVE BEEN BARRED UNDER RULE 3:22-5.
B. DEFENDANT'S PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED UNDER RULE 3:22-12.
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.
We are satisfied from our review of the record and the applicable law that these contentions do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must establish a reasonable likelihood of success under the Strickland-Fritz test.*fn2 State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-prong test, a defendant must establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
In the context of a guilty plea, the second part of the Strickland-Fritz test----the prejudice prong----focuses on whether defense counsel's performance "affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1994); accord State v. DiFrisco, 137 N.J. 434, 457 (1994).
In the present matter, the PCR judge determined that an evidentiary hearing was not necessary because defendant's petition was untimely and because defendant failed to satisfy both prongs of the Strickland-Fritz test. We are satisfied that these findings are amply supported by the record and that the matter was correctly decided. Accordingly, we affirm substantially for the reasons stated by Judge Rosenberg in his oral decision on February 29, 2008.