September 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAQUAN R. (RASHEED) JENKINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1354.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges Grall and Alvarez.
This is an appeal from the denial of a petition for post-conviction relief (PCR) by defendant, Laquan Jenkins. Because the court concluded defendant had not established a prima facie case of ineffective assistance of counsel, no evidentiary hearing was conducted. We affirm.
Union County Indictment No. 05-12-1354 charged defendant and his co-defendants, Dashon Davis and Tyrees Williams, with the September 15, 2005 robbery of German Galves, N.J.S.A. 2C:15-1, and the separate unrelated robbery on that same date of Angel Cajamarca. Defendant and Williams were charged in a third count with fourth-degree obstruction, N.J.S.A. 2C:29-1. Pursuant to a negotiated agreement, on June 5, 2006, defendant entered guilty pleas to both robberies. The State in turn agreed to dismiss the obstruction charge and recommend an aggregate sentence of six years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Despite his significant prior criminal history, on September 15, 2006, defendant was sentenced to five years subject to NERA, less than the term agreed upon with the State. At sentencing, the court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6), and nine, N.J.S.A. 2C:44-1(a)(9), and no factors in mitigation. See N.J.S.A. 2C:44-1(b).
Defendant did not pursue a direct appeal. Instead, on February 1, 2008, defendant filed a pro se post-conviction relief (PCR) petition in which he asserted that he received ineffective assistance of counsel because he was convicted of robbery even though the "evidence and facts proved" he was guilty only of theft. PCR counsel was assigned, subsequently filed a brief, and appeared at oral argument in support of the petition.
At oral argument on the petition, defendant contended that his plea counsel was ineffective because he failed to explain to him the differences between the statutory elements of robbery and theft, and the significant sentencing consequences insofar as NERA's eight-five percent parole disqualification. A plea to robbery requires a NERA sentence; a plea to theft does not. Further, defendant argued that he was entitled to relief because of the disproportionately greater sentence imposed upon him as compared to his co-defendants. Lastly, counsel asserted that the request for PCR was not time-barred pursuant to Rule 3:22-12(a).
The PCR court noted that when defendant entered his guilty plea, he testified under oath that he was entering into the plea agreement voluntarily and that he was satisfied with the services of his attorney. During the plea colloquy, defendant acknowledged that he had read the entire written plea agreement and that his attorney had explained each paragraph of the document. Defendant also said he understood everything his attorney had told him. He stated that his attorney had explained the charges and that his answers on the written plea form were true.
While establishing the factual basis for the entry of the guilty pleas to the robberies, defendant admitted to participating in two unrelated thefts while he and others used force or the threat of force "to accomplish their goal" of committing the thefts.*fn1 The PCR court found that the only discrepancy in sentencing between defendant and his co-defendants was that Davis received four years as opposed to the five years imposed on defendant. Accordingly, the PCR application was denied.
On appeal, defendant contends as follows:
DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.
THE FAILURE OF TRIAL COUNSEL TO EXPLAIN THE DIFFERENCES BETWEEN THE ELEMENTS OF ROBBERY AND THEFT, IN ADDITION TO THE SENTENCING CONSEQUENCES, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE PROCEDURAL BAR OF RULE 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
In order to succeed on a claim of ineffective assistance of counsel, a defendant must establish that his counsel's performance was seriously deficient and that the deficient performance prejudiced his right to a fair disposition of the charges. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42 (1987). In this case, no such deficiency has been identified on the part of either the plea attorney or PCR counsel.
In his first point, defendant contends that PCR counsel failed to adequately represent him by conceding, for example, that if defendant were to be convicted at a trial, he would serve a substantially longer sentence than was negotiated with the State. Defendant describes this and other statements as counsel appearing to be "arguing against her client." We do not agree with the characterization. Even if we assume that counsel's comments in some unspecified manner failed to rise to the appropriate level of advocacy, defendant does not explain how this failure prejudiced him. He does not connect counsel's purported concessions to the court's decision to deny PCR.
Defendant's second point, that trial counsel failed to explain the differences between the elements of robbery and theft to his detriment, also lacks merit. Had defendant understood, so goes the argument, that he was only guilty of theft, he would have only entered a guilty plea to theft, a nonNERA offense. But defendant readily established the necessary factual basis at the time he entered his guilty pleas as to two separate thefts committed upon two separate victims accomplished by the use of force or threat of force. Defendant admitted being part of the group which surrounded Galves until he yielded possession of his bicycle to avoid being injured; in other words, because he was being threatened and was "in fear of immediate bodily injury." As to the second robbery involving the theft of a cell phone, defendant said he was part of the group which surrounded Cajamarca while that victim was struck until he gave up possession of the item; in other words, the theft was accomplished through the use of force.
Defendant's factual basis unequivocally established, not thefts, but two separate robberies in which he acted in concert with persons who used force, or threatened the use of force, while committing thefts. Again, defendant fails to connect the claimed ineffective assistance of counsel and the outcome, or otherwise explain how counsel's conduct prejudiced him. Even if we were to accept that, for the sake of argument, defendant did not understand the differences between the legal definitions of theft and robbery, he established a factual basis, not for the commission of thefts, but for the commission of robberies. Defendant has simply not established a deficiency in counsel's performance.
In his final point, defendant contends that no procedural bar exists, but that the matter should be remanded for the court to enter a finding on the point. As the PCR judge addressed the merits nonetheless, this argument does not warrant discussion in a written opinion. R. 2:11-3(e)(2).