June 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RYAN LARSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 02-07-0942 and 02-10-1379.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Graves and J.N. Harris.
Defendant Ryan Larson appeals from an order denying his petition for post-conviction relief (PCR) dated September 14, 2007. We affirm.
Pursuant to a negotiated plea agreement, defendant pled guilty to first-degree robbery, in violation of N.J.S.A. 2C:15-1, and second-degree eluding, in violation of N.J.S.A. 2C:29-2(b) (counts one and two of Indictment No. 02-07-0942). He also pled guilty to second-degree eluding on a different date under Indictment No. 02-10-1379. In exchange for the guilty pleas, the State agreed to recommend that defendant would receive a fifteen-year term of imprisonment for the robbery, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a seven-year consecutive term for one of the eluding charges; and a concurrent sentence for the second eluding charge. The State also agreed to the dismissal of other charges.
At the plea hearing on February 21, 2003, the judge indicated he was "familiar with Mr. Ryan Larson" and was "inclined to run the eludings concurrently, with the exposure being 15 years and 85 percent." The judge also stated that if he was not able to impose concurrent sentences after reviewing the presentence report, then "Mr. Larson would be able to take back his plea and go forward with the trial." During the plea hearing, defendant testified he reviewed the plea form with his attorney and understood everything in the form. He further testified he understood the charges in the indictments and the plea agreement, and was satisfied with the legal services his attorney provided. In addition, defendant confirmed he entered into the plea agreement freely and voluntarily without any promises other than what was set forth in the plea form and stated on the record.
Defendant also set forth an adequate factual basis for his guilty pleas. With regard to the robbery charge, defendant admitted that when he entered the bank on June 13, 2002, his purpose was to get money. He testified he approached one of the tellers with an imitation handgun, demanded cash, and told the teller "it's the real thing, it's not a joke." Defendant also acknowledged it was reasonable for the teller to believe that he had "a real gun" and he was "going to use the gun on her." Defendant testified he attempted to elude the police when they tried to stop him after he left the bank and drove away.
At sentencing on May 7, 2003, defendant's attorney advised the court that defendant took full responsibility for his actions, and he was "very grateful that no one was injured." Defendant's attorney also stressed that defendant was a young man who needed help:
Your Honor, as Ryan stands before you, he's 21 years old today. Preceding today's events, we're looking at 15 arrests. It certainly speaks loudly that there was a serious problem with this young man. Before any criminal activity ever took place, Ryan was addicted heavily to alcohol and drugs and had heavy exposure in his immediate surroundings and in his immediate home to drug use and alcohol. His father is 53 years old. He's a combat Vietnam veteran and came home with a terrible habit, and Ryan simply did not have a chance.
And it's one heartbreak after another, as I read the history in that four-inch volume over there, of a program not being available for Ryan at critical times, because he has mental disorders as well.
There's some psychosis; there's bipolar. We combine this mental illness with drug addiction and alcohol, and that's what happened. So, in sum and substance... he's a young man that needs help, and what he did was scream for help.
When defendant addressed the court, he agreed his use of drugs was "a factor" but accepted responsibility for his conduct and apologized for his actions:
First, I'd like to thank God nobody was injured during that whole ordeal on June 13th, and it was a pretty insane thing to do. My lawyer said it was a cry for help, and I blame it on the drugs. I mean, drugs had to factor [into] what I did.... but I'm here to admit my guilt and take blame for what I did. I pled guilty to it, and I'm sorry for the trouble I put the Court through and my family through.
Defendant was sentenced consistent with the plea agreement. The court imposed a fifteen-year prison term for first-degree robbery with a mandatory period of parole ineligibility under NERA; and concurrent seven-year terms were imposed on the two eluding charges. This court affirmed the sentence, finding it was "not manifestly excessive given this defendant's extensive record," was not unduly punitive, and did not constitute an abuse of discretion. State v. Larson, No. A-3169-03 (App. Div. Jan. 12, 2005). The Supreme Court denied defendant's petition for certification. 185 N.J. 38 (2005). Defendant subsequently filed the PCR petition that is the subject of this appeal.
In his PCR petition, defendant argued his trial counsel was ineffective for failing to seek a "report from the retained psychologist in mitigation of sentence," and for failing to present "substantial records which would [mitigate] the defendant's sentence"; for failing "to move to withdraw the defendant's plea either before or after sentencing"; for improperly advising defendant "he faced an extended term"; for failing to inform defendant that "he could get 85% of the [sentence] imposed as opposed to 85% of a ten year sentence"; and for failing to request that defendant be sentenced as a young adult offender to an indeterminate term at the Youth Correctional Institution Complex pursuant to N.J.S.A. 2C:43-5. Defendant also claimed: "To the extent that appellate counsel could have raised any issues on direct appeal and failed to do so, defendant was denied effective assistance of appellate counsel."
Following oral argument on September 14, 2007, the PCR court addressed each of defendant's arguments in a comprehensive oral decision. The court concluded defendant failed to satisfy both prongs of the Strickland/Fritz*fn1 test and denied defendant's petition.
On appeal from the denial of his petition, defendant presents the following arguments:
THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING CONCERNING WHAT DEFENDANT WAS TOLD BY HIS TRIAL COUNSEL AS TO WHAT SENTENCE HE SHOULD EXPECT IF HE WERE TO GO TO TRIAL.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL.
We reject these arguments and affirm the order denying defendant's PCR petition. Defendant's claim that his PCR attorney was ineffective is clearly without merit. R. 2:11-3(e)(2). Moreover, we agree with Judge Citta's determination that an evidentiary hearing was not required because it is clear from the plea form and the plea colloquy that defendant "fully understood the plea bargain" and bargained for the sentence he received. Accordingly, defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462-64 (1992).