May 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LATEEF GLANTON, A/K/A BILAL BISHOP, GLENN THOMAS, GLENN D. THOMAS, LATIF GLANTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-10-2952.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Parrillo and Lihotz.
Defendant Lateef Glanton is a State prison inmate serving an aggregate twenty-two-year sentence subject to a twelve year and nine month period of parole ineligibility, following an August 29, 2001 jury conviction for armed robbery, weapons offenses and eluding. Defendant's conviction and sentence were affirmed by this court on direct appeal. State v. Glanton, No. A-1931-01 (App. Div. May 2, 2003). Certification was denied shortly thereafter. State v. Glanton, 177 N.J. 572 (2003).
Defendant appeals from a May 9, 2007 order denying his petition for post-conviction relief (PCR) without benefit of an evidentiary hearing. Defendant's motion to file this appeal as within time was granted. On appeal, defendant argues:
AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT ASSERTS A PRIMA FACIE CASE INVOLVING FACTS WHICH ARE NOT PART OF THE TRIAL RECORD.
THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HIS TWO CONSULTATIONS WITH THE DEFENDANT WERE INSUFFICIENT TO PREPARE A DEFENSE GIVEN THE EXTENSIVE FACT PATTERN WHICH INVOLVED MULTIPLE CRIMINAL EPISODES OVER A SPAN OF SEVERAL HOURS.
THE DEFENDANT'S SENTENCE UNDER NERA SHOULD BE VACATED WHERE THE JURY'S FINDING THAT THE DEFENDANT COMMITTED A VIOLENT CRIME AGAINST BAILEY DID NOT CONFORM TO THE PROOFS AT TRIAL.
Following our review in light of the record and applicable law, we affirm.
Defendant asserts trial counsel was ineffective, claiming he held only two limited consultations with defendant before trial. Defendant broadly states trial counsel failed to properly prepare for trial, did not share discovery materials with him, and neglected to engage a psychiatric evaluation to determine whether defendant suffered effects of a 1998 brain injury. The PCR judge, who was the trial judge, noted defendant raised no concerns at trial, which spanned eleven days, and offered no new evidence to show what counsel should have presented but did not. To establish ineffective assistance of counsel, a defendant must prove counsel's performance was deficient -- that is, it fell below an objective standard of reasonableness such that "'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)). Additionally, a defendant must prove he suffered prejudice due to counsel's deficient performance, that is, there is a "reasonable probability" counsel's errors changed the outcome of the case. Stickland, supra, 466 U.S. at 692, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696; Fritz, supra, 105 N.J. at 58; State v. Allah, 170 N.J. 269, 283 (2002).
"The burden to prove that [the] incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). A defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid. As noted in Strickland, supra:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
[466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95 (internal quotations and citation omitted).]
Defendant's unsupported, general contentions that counsel should have pursued a different strategy or presented other evidence, without more, will not satisfy his burden under the Strickland/Fritz test. State v. Williams, 284 N.J. Super. 142, 149 (Law Div. 1995), aff'd, 309 N.J. Super. 117 (App. Div.), certif. denied, 156 N.J. 383 (1998); State v. Zold, 105 N.J. Super. 194, 203 (Law Div. 1969), aff'd o.b., 110 N.J. Super. 33 (App. Div.), certif. denied, 57 N.J. 131 (1970). Likewise, in the absence of any other objective proof of deficient performance or lack of preparation, the newly proffered suggestion that counsel met with him only two times prior to trial was properly rejected.
In light of defendant's failure to establish a prime facie showing of ineffective assistance of counsel, the PCR judge correctly concluded he is not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).
Finally, defendant challenges the imposition of the 85% parole disqualification period imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant argues the State did not prove his armed robbery conviction was violent. We conclude this assertion lacks merit.
Defendant and his co-defendant Ahwar Wesley were charged with the armed robbery of Marquis Ford and Tashan Bailey. Defendant's convictions were supported by overwhelming evidence of his guilt, including the testimony of Wesley, who testified, under a grant of immunity, that he was in defendant's car when defendant used a silver pistol to assault and rob the two boys. Ford testified that "the skinny" attacker hit Bailey repeatedly with the gun while the "shorter" assailant punched him once in the stomach. The court imposed NERA on the fifteen-year sentence related to the armed robbery of Bailey.
Contrary to defendant's contentions, there was no confusion as to his role in the robbery, which involved the use of a loaded weapon and was accompanied by violence. Although defendant asserts both he and Wesley were thin, Ford's use of the descriptive "skinny" was to differentiate one attacker from the other, who was described as "shorter." Wesley was much shorter than defendant. The evidence was sufficient to support the imposition of NERA to this offense.
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