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State v. Usry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAHAAN USRY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-01-0166.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2010

Before Judges Wefing and Grall.

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was originally indicted for conspiracy to commit robbery, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; purposeful/knowing murder, N.J.S.A. 2C:11-3a(1),(2); felony murder, N.J.S.A. 2C:11-3a(3); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.

The charges against defendant flowed from the slaying of Kevin Llanos in Newark on July 25, 1999. Defendant, who was sixteen years old at the time, accompanied by two companions, came upon Llanos as he was sleeping in a parking lot. Llanos was wearing a gold watch, a gold bracelet, and a chain. The three decided to rob the sleeping Llanos. Llanos died from a single bullet wound to the head.

Ten days later, defendant, accompanied by his parents, surrendered. After being advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and after having the opportunity to confer privately with his parents, defendant gave a voluntary statement in which he admitted shooting Llanos. Defendant was charged accordingly, and jurisdiction was waived to the Law Division.

Thereafter, defendant entered a negotiated plea of guilty to one count of aggravated manslaughter and allied offenses; he agreed to testify truthfully at the trial of one of his companions, and the State agreed to recommend a sentence not to exceed twenty years, subject to the provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act. Another of defendant's companions also entered a similar negotiated plea, again conditioned upon testifying truthfully at the trial of the remaining participant. These two pleas were not independent of each other; rather, each plea was also conditioned upon the other pleading guilty as well, and agreeing to testify.

Subsequently, after the co-defendant filed a motion to withdraw his guilty plea, the State moved to withdraw both guilty pleas. Defendant opposed the motion, contending he was still willing to testify, as he had agreed. The trial court, however, granted the State's motion and defendant proceeded to trial.

On the second day of defendant's trial, he entered an open plea of guilty to all the charges in the indictment. At sentencing the trial court merged the conspiracy count with the robbery count and sentenced defendant to fifteen years in prison, with a five-year period of parole ineligibility. It also merged defendant's felony murder conviction with his conviction for murder and sentenced defendant to thirty years in prison, with a thirty-year period of parole ineligibility. Defendant's remaining sentence was also concurrent, and thus defendant received an aggregate sentence of thirty years in prison, with a parole ineligibility period of thirty years.

Defendant appealed, contending his sentence was excessive. We rejected that argument in an order entered January 9, 2003. State v. Usry, No. A-6703-01T4 (Jan. 9, 2003).

Defendant then filed a petition for post-conviction relief, which the trial court denied. Defendant again appealed, contending that he did not supply an adequate factual basis to support the convictions for first-degree murder or felony murder at the time he pled guilty and that the trial court should have held a hearing with respect to his claim that his trial attorney had been ineffective. We remanded the matter; while we found the record would fully support his conviction for felony murder, we agreed with defendant that the record presented to us did not contain evidence that defendant's shooting of Llanos was either purposeful or knowing. State v. Usry, No. A-3638-06T4 (App. Div. Mar. 31, 2008).

When the matter was presented to the trial court on remand, the State moved to dismiss the conviction of first-degree murder and proceed to sentencing on the conviction for felony murder. The trial court ultimately granted this motion and sentenced defendant for felony murder to thirty years in prison, with a thirty-year period of parole ineligibility. Defendant has again appealed. On appeal, he raises the following contentions:

POINT ONE

THE TRIAL COURT ERRED IN UNMERGING DEFENDANT'S FELONY MURDER CONVICTION AND SENTENCING DEFENDANT ON THE FELONY MURDER BECAUSE THE APPROPRIATE REMEDY IN THIS CASE WAS TO VACATE THE ENTIRE PLEA

POINT TWO

IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR A HEARING ON DEFENDANT'S REMAINING PCR ARGUMENTS BECAUSE PCR COUNSEL FAILED TO ADVANCE AND THE PCR COURT FAILED TO CONSIDER THOSE ARGUMENTS ON THE PRIOR REMAND

I.

There is no merit to the first portion of defendant's argument. State v. Pennington, 273 N.J. Super. 289, 295 (App. Div.), certif. denied, 137 N.J. 313 (1994), makes clear that the procedure utilized here was entirely correct. In Pennington, the defendant had been convicted of capital murder and felony murder. Id. at 291. The Supreme Court set aside the defendant's capital conviction, State v. Pennington, 119 N.J. 547 (1990), and remanded the matter for retrial. 273 N.J. Super. at 292. Thereafter, the State moved to reinstate defendant's felony murder conviction, which had been merged at the time of his initial sentencing. Id. at 293. The trial court granted this motion and sentenced defendant to life in prison, with thirty years of parole ineligibility, for felony murder. Id. at 294. Defendant appealed, contending that his felony murder conviction could not be "unmerged" in this manner. Ibid. We rejected that argument.

Convictions merged for the purpose of sentencing are not extinguished. The doctrine of merger, as codified by N.J.S.A. 2C:1-8a, only serves to prevent an accused [who] has committed . . . one offense . . . [from being] punished as if for two. Consequently, if an appellate court reverses a defendant's conviction, for an offense into which the trial court has merged a lesser offense, the State may elect not to retry defendant for the greater offense and instead request the trial court to "unmerge" the lesser offense and sentence defendant thereon. [Id. at 295 (alterations in original) (citations and internal quotation marks omitted).]

II.

The trial court did not directly pass upon defendant's other argument, that he did not receive the effective assistance of counsel. Rather than remand this matter a second time, we have reviewed defendant's contentions in this regard and are satisfied that they lack legal merit.

Initially, we note the standard that guides the consideration of any assertion that a defendant's attorney provided ineffective assistance during the course of representing that defendant.

The law with respect to claims of ineffective assistance of counsel is both clear and well-settled. Our federal and State Constitutions grant a criminal defendant the right to assistance of counsel. The benchmark for judging any claim for ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a fair result. [There is] a two-prong test to determine whether counsel's assistance was so defective as to require reversal of a defendant's conviction. . . First, the defendant must show that counsel's performance was deficient. Second, the defense must show that the performance probably prejudiced the defense. [State v. Harrington, 310 N.J. Super. 272, 283 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 156 N.J. 387 (1998).]

In his counsel's appellate brief in his prior appeal from denial of PCR, defendant, in addition to his argument with respect to the adequacy of the factual basis he had provided when he entered his plea of guilty, also made the following arguments to support his contention that he had received ineffective assistance from the attorney who represented him before the trial court.

MR. USRY IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY WAS INEFFECTIVE FOR MISREPRESENTING THE CHARGES AGAINST HIM THE CLAIMS IN MR. USRY'S PETITIONS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).

Defendant's pro se claims which were incorporated were the following:

(1) DEFENDANT DID NOT GIVE A FACTUAL BASIS SUPPORTING THE CHARGE OF FELONY MURDER AND AS SUCH, THE RESULTING CONVICTION AND SENTENCE SHOULD BE VACATED;

(2) THE FACTUAL BASIS WAS ACCOMPLISHED BY LEADING QUESTIONS PUT TO THE DEFENDANT BY THE DEFENSE ATTORNEY WHICH DEPRIVED THE TRIAL COURT OF ITS DUTY TO DETERMINE IF IN FACT THE DEFENDANT COMMITTED ACTS WHICH CONSTITUTE OFFENSES CHARGED;

(3) DEFENDANT'S MOTHER DID NOT HAVE A PROPER UNDERSTANDING OF MIRANDA IN ORDER TO KNOWINGLY WAIVE DEFENDANT[']S RIGHTS PER MIRANDA; and

(4) DEFENDANT'S MOTHER[']S DECISION TO ENCOURAGE DEFENDANT TO WAIVE HIS RIGHT TO A TRIAL UNDER THREAT OF A LIFE SENTENCE IF DEFENDANT WAS FOUND GUILTY OF THE OFFENSES CHARGED WAS BASED UPON DEFENSE COUNSEL'S GROSS MISREPRESENTATION OF THE CHARGES AGAINST DEFENDANT.

To the extent that defendant in these arguments challenges the sufficiency of the plea proceedings, his arguments are foreclosed by our earlier opinion, in which we upheld his plea of guilty to the charge of felony murder. To the extent that defendant in these arguments says that he or his mother relied upon misrepresentations made by his trial attorney, his arguments lack any factual basis. He has presented no affidavits, either from himself or his mother, to support his position.

Defendant also refers to additional arguments raised by his attorney in connection with his initial post-conviction relief hearing. These arguments are the following:

(1) []PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSIS[]TANCE OF COUNSEL (U.S. CONST. AMEND VI, XIV: N.J. CONST. (1947) Art I, par 10). [sic] AND BECAUSE HE WAS PREJUDICE[D] THEREBY, THE COURT SHOULD GRANT HIS MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE. [sic]

(A) Trial Counsel was ineffective when the Petitioner placed his factual basis on the record and that factual basis failed to establish Petitioner's guilt to each and every count in the indictment and trial counsel did not object;

(B) Refer to the Petitioner's pro se brief in support of his petition for post-conviction relief. Please refer to that brief for petitioner's additional arguments, which are incorporated herein by reference. State v. Webster, [187 N.J. 254 (2006)].

(2) PETITIONER IS ENTITLED TO RELIEF DUE TO THE CUMULATIVE ERRORS OF COUNSEL; and

(3) THE PETITION FOR POST-CONVICTION IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.

Finally, we note for the sake of completeness that defendant has submitted a pro se brief in connection with this appeal in which he raises the following arguments:

COUNSEL CAJOLED HIS CLIENT INTO PLEADING GUILTY BY MISINFORMING ABOUT THE MATERIAL CONSEQUENCES OF HIS GUILTY PLEA COUNSEL FAILED TO APPROPRIATELY ADVISE DEFENDANT REGARDING HIS EXPOSURE.

These arguments, either singly or combined, do not warrant discussion in a written opinion because it would lack any precedential value; they lack any legal merit. R. 2:11-3(e)(2).

The order under review is affirmed.

20100726

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