February 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERESA L. MCCALLUM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 07-08-1839 and 07-09-2125.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Kestin and Newman.
Defendant, Teresa L. McCallum, appeals from an order denying her petition for post-conviction relief (PCR). R. 3:22.
Defendant had been convicted, pursuant to guilty pleas, of charges in two indictments: third-degree conspiracy regarding possession of a controlled dangerous substance, N.J.S.A. 2C:35- 10a(1); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4d. The remaining charges against defendant were dismissed, as provided in a plea agreement.
Also as provided in the plea agreement, defendant was sentenced, on February 8, 2008, for the second-degree crime -- into which the weapon conviction had merged, to five years of imprisonment with eighty-five percent parole ineligibility and three years of parole supervision upon release. A concurrent term of imprisonment for four years was imposed for the drug conviction. Appropriate fines, penalties and assessments were ordered.
Defendant did not file a direct appeal. She filed this petition for post-conviction relief on December 2, 2008. Judge DeLury denied the petition on August 14, 2009, for reasons stated on the record and in his letter opinion dated September 2, 2009. This appeal followed.
The drug charge had arisen when, on July 10, 2007, an Atlantic City Police Department SWAT team entered a hotel room in which defendant was present with someone who had, earlier, robbed a bank. Two twenty-dollar bags of cocaine were on a table between the beds, and a burnt glass tube was on the floor.
On entering her guilty plea to the drug charge, defendant replied in the affirmative to a question whether she had "some kind of agreement or understanding with the co-defendant . . . that [she was] going to get or obtain some cocaine."
The aggravated assault and weapon charges had arisen on July 30, 2007. The trial court judge, in his letter opinion, described the factual scenario in detail. Defendant, when she entered her guilty plea, acknowledged that she had "stabbed [the victim] three times."
For the most part, the arguments raised in this appeal track those made before the trial court in the proceeding on the petition for post-conviction relief:
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HER TRIAL ATTORNEY IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTIUTIONS.
THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
A. Trial counsel should have viewed the surveillance video recording of the alleged aggravated assault and provided a copy to the defendant along with the other discovery in her case.
B. The defendant was misinformed about the plea agreement by trial counsel.
THE GUILTY PLEAS MUST BE VACATED BECAUSE THE DEFENDANT DID NOT ENTER INTO THE PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY AND WAS NOT INFORMED ABOUT OR AWARE OF THE PENAL AND COLLATERAL CONSEQUENCES OF THE PLEA AGREEMENT PRIOR TO THE PLEA HEARING.
REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE SENTENCING HEARING AND INEFFECTIVENESS OF APPOINTED TRIAL COUNSEL.
In POINT III of the brief on appeal, defendant raises issues bearing upon the conduct of counsel in the post-conviction relief proceeding in the trial court:
THE FAILURE OF PCR COUNSEL TO VIEW THE SURVEILLANCE RECORDING AND OTHERWISE FULLY INVESTIGATE THIS CASE DEPRIVED THE DEFENDANT OF HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
A. PCR counsel did not view the surveillance recording of the alleged aggravated assault.
B. PCR counsel did not conduct thorough investigation as required by Webster, Rue, Hicks and R. 3:22-6(d).
From our review of the record in detail, we discern no misapplication of discretion on the part of the trial court in evaluating defendant's arguments and denying her petition for post-conviction relief without an evidentiary hearing. We are in substantial agreement with the reasons expressed by Judge DeLury in his oral and written opinions. Moreover, on the record before us, without prejudice to further development by defendant in a future petition for post-conviction relief, see State v. Preciose, 129 N.J. 451, 462 (1992), we discern no errors or omissions by PCR counsel that would justify a reversal.
© 1992-2011 VersusLaw Inc.