April 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WALTER YATES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-03-484.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Yannotti and Espinosa.
Defendant appeals from the denial of his petition for post- conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant pled guilty to third-degree burglary, N.J.S.A. 2C:18-2, and first-degree robbery, N.J.S.A. 2C:15-1. On September 10, 2003, the sentencing court imposed an aggregate sentence of fifteen years with 85% of that term to be served before he is eligible for parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, five years parole supervision, and appropriate fines and penalties.
Defendant did not file a direct appeal from his convictions and sentence.
Defendant filed a pro se PCR petition on March 2, 2007. In the certification submitted in support of the petition, defendant described the underlying offense as follows:
The basic facts are that defendant and his co-defendants, Lisa A. Stetser and Melvin Coles, planned to rob a Amoco Gas station, owned and operated by Harjeet Singh. Defendant was the driver. Defendant parked away from the gas station because he knew the owner, Mr. Singh and so that Mr. Singh would not know defendant was involved. The co-defendants approached the gas station and were able to get the cash register. Defendant Coles assaulted Mr. Singh with a hammer during the course of the theft. Defendant, upon witnessing the assault, drove over to the station to stop defendant Coles from beating Mr. Singh. The defendant refused to drive the co-defendants away with the cash register. The co-defendants attempted to run away with the register but dropped the register, leaving it in the parking lot of the gas station, which was next to the Amoco station. The cash register and cash were returned to the victim, Mr. Singh.
In his petition, defendant argued he did not commit the offense of robbery because the act of theft was not completed and his counsel was ineffective in failing to recognize the absence of a factual basis for his guilty plea. The PCR court denied defendant's petition by order dated March 10, 2009. Defendant presents the following issues for our consideration in his appeal.
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL
Defendant also submitted a supplemental pro se brief in which he presents the following arguments:
THE COURT ERRED IN ACCEPTING THE DEFENDANT[']S PLEA ENTRY THUS LACKING A FACTUAL BASIS FOR DEFENDANT[']S GUILT
THE COURT ERRED IN SENTENCING THE DEFENDANT UNDER THE FIRST DEGREE GUIDELINES WHEN FACTS EXIST CONSISTENT TO WARRANT SENTENCING UNDER THE LOWER END OF SECOND DEGREE
DEFENDANT[']S SENTENCE WAS DISPROPORTIONATE TO CO-DEFENDANTS MELVIN L. COLES AND LISA A[.] STETER THEREFORE REQUESTING MODIFICATION TO DEFENDANT[']S SENTENCE
DEFEN[D]ANT['S] CLAIMS PRESENTED ON POST CONVICTION WERE JUSTIFIED GIVEN THE CURCUMSTANCES [SIC] OF DEFENDANT'S COUNSEL[']S LACK OF RESPONSIBILITY TO ACT IN ALL STAGES OF THE LOWER COURT PROCEEDINGS AND THROUGH SENTENCING PREJUDICED THE DEFENDANT THEREFORE AN EVIDENTIARY HEARING SHOULD HAVE BEEN PERMITTED TO PROJECT DEFENDANT[']S CLAIMS THAT WERE WELL ESTABLISHED BY THE LOWER TRIAL RECORD
THE CUMULATIVE ERRORS DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL
We are not persuaded by any of these arguments and affirm.
A person is guilty of robbery under N.J.S.A. 2C:15-1(a) if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
Relevant to defendant's argument here, the statute further provides that an act occurs "'in the course of committing a theft' if it occurs in an attempt to commit theft[.]" An attempt requires a specific intent to steal, State v. Whitaker, 200 N.J. 444, 460 (2009), which defendant admitted here, but does not require proof that the defendant's actions and intent culminated in the taking of property. Therefore, defendant's argument that he did not commit the offense of robbery lacks merit. Moreover, the arguments defendant raises as to the sufficiency of the factual basis for his guilty plea and his challenge to his sentence are procedurally barred by R. 3:22- 4(a) as they could have been raised on direct appeal.
In challenging the effectiveness of his counsel, defendant argues that, as a result of his attorney's failure to review discovery with him, he was unaware of the "relative weakness of the State's case and a viable defense strategy," i.e., that only one victim was able to identify any photographs of the alleged assailants.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
In this case, as the PCR court observed, defendant's two co-defendants both gave statements that implicated defendant as the instigator of the robbery, stating he drove them to the scene, provided the weapon and made co-defendant Coles get out of the car to commit the robbery. The inability of other victims to identify his co-defendants is of little persuasive weight as to defendant's own guilt. Moreover, in his own certification, defendant does not deny he participated in the planning of a robbery.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel under the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
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