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State v. Terry

January 25, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT TERRY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-01-0088.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 6, 2010

Before Judges Graves and J. N. Harris.

Defendant Robert Terry stabbed and killed a good Samaritan--Jose Valdez--on October 19, 2001. Defendant admitted his culpability and does not claim to be innocent of the crime. Nevertheless, he seeks post-conviction relief because he believes that he was inadequately represented during the negotiation of a plea bargain and therefore suffered from the ineffective assistance of counsel. We disagree, and hereby affirm the denial of his application for post-conviction relief.

I.

After Terry was indicted in an eight-count indictment, he entered a plea of guilty to a single charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), while all other charges were dismissed. On December 12, 2003, Judge Ronald G. Marmo sentenced defendant pursuant to the terms of the plea agreement to a twenty-four year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In fashioning the sentence of incarceration, Judge Marmo found aggravating factors three, six, and nine,*fn1 but no mitigating factors.

On September 22, 2005, this court remanded the matter for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005). On October 28, 2005, Judge Marmo conducted the remand sentencing, which resulted in the imposition of an identical term of imprisonment and application of the NERA. Again, Judge Marmo found aggravating factors three, six, and nine to exist, with no mitigating factors. The initial pre-sentence report was not updated, but defendant's then-attorney was permitted to supplement its contents by advising the sentencing court of defendant's positive conduct while in prison, which included obtaining certificates for participating in anger management therapy, participating in a centering prayer program, working as a clerk in the vocational training at the television and radio repair shop, and attempting to enroll for psychological counseling.

Defendant sought review of the sentence with this court. On May 3, 2006, we affirmed the judgment of the trial court, finding "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." Further judicial review was denied. State v. Terry, 188 N.J. 353 (2006).

On February 7, 2007, defendant filed a pro se application for post-conviction relief (PCR). In it, he argued the following points:

POINT ONE - PETITIONER CHALLENGE[S] THE FACTUAL BASIS OF AGGRAVATED MANSLAUGHTER, 1ST DEGREE, WHICH INVOLVE[S] THE NERA ACT.

POINT TWO - WHETHER DEFENSE COUNSEL WAS INEFFECTIVE DURING PLEA NEGOTIATIONS, IN VIOLATION OF PETITIONER'S SIXTH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION.

A few months later, defendant's PCR attorney presented the following arguments to Judge Marmo:

POINT 1. THE LACK OF A NEW PRE[-]SENTENCING REPORT AFTER REMAND DENIED DEFENDANT DUE PROCESS, WHEREFORE, THE ENTIRE SENTENCING SHOULD BE CONDUCTED ANEW.

POINT 2. THE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM THE PETITIONER THAT THE STATE HAD MADE AN ADVANTAGEOUS PRETRIAL OFFER.

POINT 3. THE TRIAL COURT FAILED TO CONSIDER PROPERLY CERTAIN MITIGATING FACTORS WHEN SENTENCING DEFENDANT.

In support of Point 2--that defendant's attorney failed to adequately convey to him a more advantageous plea offer from the State--defendant's proof consisted entirely of a notarized letter:

On November 30, 2007, after conducting a PCR hearing--but not an evidentiary hearing--Judge Marmo denied defendant's application. The trial judge, who was very familiar with the case's history leading up to the first and second sentencings, rejected defendant's contention that there ever was a more favorable plea offer than twenty-four years incarceration. Judge Marmo noted:

With regard to Point No. 2 apparently there is nothing at all to support the claim that there was some plea offer that was available to the defendant, that was communicated to his attorney, that was more favorable to the defendant than the plea offer that he ultimately accepted, other than the allegation of the defendant.

In fact, after a close reading of defendant's letter, it is evident that it does not contain allegations that an offer was made of less than twenty-four years by the State. Rather, it only states, "Judge Caposella granted me a plea-bargain of eighteen years." The full details of the supposed alternative plea offer do not appear anywhere in the record.

When the matter first came to Judge Marmo's attention in 2003, he conducted a plea allocution hearing where the following colloquy occurred:

Q: All right. Mr. Terry, I understand that your intention is or remains today as you indicated earlier this week that you wish to admit your guilt to that charge of aggravated manslaughter; is that correct?

A: Yes.

Q: I assume you are doing that only because, first of all and certainly most important of all, you recognize that you did, in fact, commit at least that offense, and I'm sure you are doing it because you want to accept the terms of a plea settlement agreement that Mr. Galluccio has arranged on your ...


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