July 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIUS B. IVEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 97-02-0673, 98-07-2485 and 98-09-3048.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2010
Before Judges Skillman and Fuentes.
Defendant Julius B. Ivey appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.
On September 6, 2005, defendant pled guilty to count two of Indictment 673-03-97 charging him with second degree possession of a handgun by a person previously convicted of one of the offenses enumerated in N.J.S.A. 2C:39-7b(1), count two of Indictment 2485-07-98 charging him with second degree aggravated assault, N.J.S.A. 2C:12-1b(1), and count two of Indictment 3048-09-98 charging him with fourth degree failing to notify law enforcement of a change in address, N.J.S.A. 2C:7-2d. Pursuant to the negotiated plea agreement, the State agreed to recommend that the court sentence defendant to a term of five years with five years of parole ineligibility, the minimum sentence permitted under N.J.S.A. 2C:39-7b(1), a seven-year term with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA)*fn1 for the aggravated assault, and an eighteen-month term for the fourth degree failure to report; all of these terms were to run concurrently, for an aggregate term of seven years under NERA.
The matter came before the trial court for sentencing on January 4, 2006. Before the court imposed its sentence, defense counsel notified the court that, against his advice, defendant wanted to withdraw his guilty plea and proceed to trial on all charges. Because counsel believed that adhering to the plea agreement was in defendant's best interests, he sought leave to withdraw as defendant's counsel of record. After hearing from all involved, including defendant himself, the court denied defendant's application and sentenced him consistent with the plea agreement.
Defendant appealed both his conviction and the sentence imposed by the court pursuant to the summary process provided under Rule 2:9-11. In that appeal, defendant argued that the court erred in denying his right to allocution before imposing a sentence. In so doing, appellate counsel clarified that defendant no longer sought to withdraw his guilty plea; he simply wanted to address the court directly before the imposition of sentence, as provided for in Rule 3:21-4(b). By order dated March 29, 2007, we vacated the sentence imposed by the court and remanded for re-sentencing "to assure defendant's right of allocution and assistance of counsel." State v. Ivey, No. A-5856-05 (App. Div. Mar. 29, 2007).
The matter returned to the trial court for re-sentencing on June 22, 2007, at which time defendant's new attorney indicated that he agreed with the prior defense counsel's opinion that the negotiated plea agreement was "a very reasonable plea agreement." When the judge asked defendant if he had anything to say before the imposition of sentence, defendant responded:
"Not at this moment." The court then again sentenced defendant consistent with the plea agreement. Defendant did not seek any further appellate review of his sentence.
On November 26, 2007, defendant filed a PCR petition alleging ineffective assistance of counsel. Thereafter, defendant's court-assigned attorney filed a supplemental brief in support of the petition. Defendant submitted a certification claiming that his trial counsel also represented his brother Terryle Ivey on the charges under Indictment 98-07-2485. Although PCR appellate counsel concedes that "trial counsel completed his actual representation of Terryle before commencing his representation of the defendant," he nevertheless argued that this joint-representation amounted to per se ineffective assistance of counsel, requiring the court to vacate defendant's guilty plea.
According to defendant, the insolvable problem created by this joint-representation is that his trial counsel could have been privy to information related to his representation of Terryle that could have exonerated defendant or inculpated someone else. It is noteworthy, however, that defendant has not presented an affidavit or identified a witness who could support this contention.
Based on this record, the PCR judge found defendant failed to establish a prima facie case of ineffective assistance of counsel and denied the petition without an evidentiary hearing. Defendant now appeals raising the following arguments:
TRIAL COUNSEL'S JOINT REPRESENTATION OF THE DEFENDANT AND A CO-DEFENDANT IN THE SAME INDICTMENT CONSTITUTED PER SE INEFFECTIVE ASSISTANCE OF COUNSEL.
PURSUANT TO STATE V. WEBSTER, 187 N.J. 254 (2006), THE DEFENDANT INCORPORATES BY REFERENCE ALL REMAINING ARGUMENTS RAISED IN HIS PRO SE PETITION FOR POST-CONVICTION RELIEF AND BY ASSIGNED COUNSEL IN THE BRIEF IN SUPPORT OF THE SUPPLEMENTAL PETITION FOR POST-CONVICTION RELIEF.
We reject these arguments and affirm. We review a claim of ineffective assistance of counsel under the two prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. A trial court can deny a PCR petition without a hearing if a defendant cannot establish a prima facie case under Strickland/Fritz. R. 3:22-10(a).
Defendant has not presented sufficient evidence to establish a prima facie case with respect to either one of the two prongs under Strickland/Fritz. With respect to defense counsel's performance, the proscription against joint representation in Rule 3:8-2 is not implicated here because trial counsel's representation of defendant's brother ended before he began representing defendant. As to the prejudice requirement under prong two, even if we were to find some impropriety in defense counsel's decision to represent defendant after completing his representation of his brother, defendant has not come forward with any specific evidence to show how that fact alone would have affected his decision to accept the plea agreement offered by the State. Finally, defendant was represented by a different attorney at the time he was resentenced by the court. At that final sentencing hearing, defendant's new counsel reaffirmed that going forward with the plea agreement was in defendant's best interests.