August 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEEON JONES, A/K/A ASMAR JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0450.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 26, 2011
Before Judges Graves and Yannotti.
Defendant Keeon Jones appeals from an order dated January 26, 2010, denying his petition for post-conviction relief (PCR). We affirm.
In a forty-count indictment, defendant and four other persons were charged with numerous offenses. On December 19, 2006, defendant pled guilty to ten first-degree charges, four second-degree charges, one third-degree charge, and three fourth-degree charges. In exchange, the State agreed to dismiss all of the remaining charges in the indictment and to recommend a twelve-year prison term, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In the plea papers defendant initialed and signed, he confirmed that he was satisfied with the advice he received from his attorney and that he was entering the guilty plea voluntarily. In addition, when questioned by his attorney, defendant testified as follows:
Q. . . . Now on August 13th, 2005, you, Jeffrey Walker, Jermaine Walker, Jahad Lasane, and Elijah Perry (all phonetic) committed a series of robberies, correct?
Q. Okay. And that was approximately from 9:30 in the morning to 10 o'clock in the morning, about a half [h]our spree. There was this crazy spree where you guys drove around in a Jeep and robbed people, right?
Q. Okay. Now, just for purposes of all these people, we're going to go through them one at a time. When I say the word robbery, you guys agreed to forcibly take from other individuals property that did not belong to you, correct?
A. Yes.. . . .
Q. All right. But even on the people where you didn't get any money, it was your intent to steal something from these people and not give it back to them, correct?
Q. Okay. Now, in order to get these people to give you their possessions, you utilized some weapons?
Q. What type of . . . weapons were you guys utilizing on August 13th, 2005?
A. A 45 caliber and 38 revolver.
Q. Okay. And . . . that was the means that you used to force this from other people, correct?
Q. Okay. Now we'll go through these people one at a time now, all right? At about 9:30 in the morning, while in the area of Grafton . . . Avenue, those were your first victims. . . .
Q. Okay. And from Candido Arroyo, a cell phone was taken?
Q. Okay. And from Rafael Carrero, approximately $140 was taken?
Q. Okay. A few minutes later, you ended up on Bloomfield Avenue and North Fifth Street, and that was your second robbery?
Q. Okay. And that was actually a gray Honda that you guys stopped and tried to rob?
A. Yes.. . . .
Q. And that was one of those aborted attempts where you didn't get anything but you attempted to steal some money?
Q. Okay. Your third robbery was about 9:49 a.m. at . . . Parker Street in Newark?
A. Yes.. . . .
Q. And approximately $50 was taken from Edison Zimora?
Q. Okay. Your next robbery was a few minutes later at about 9:50 a.m. on . . . Parker Street, right down the street from the last robbery?
A. Yes.. . . .
Q. And in fact, there was nothing taken from that person, but that person's pockets were searched?
Q. Okay. The next robbery was a couple of minutes later, about ten minutes later at 10 a.m.?
Q. And that was at . . . Grafton Avenue?
A. Yes.. . . .
Q. And . . . approximately $110 was taken from Francisco Vargas?
Q. And actually nothing was taken from Antonio Rodriguez but that was somebody who you attempted to take some stuff from?
A. Yes.. . . .
Q. The next robbery was pretty much simultaneous with that, at about 10 a.m. at . . . Third Street in Newark?
A. Yes.. . . .
Q. Okay. And approximately $1,187 was taken from D Ulloa?
Q. Okay. And then a couple of minutes later at . . . Summer Avenue in the City of Newark there was another robbery?
A. Yes.. . . .
Q. And $30 and a gold watch was taken from Mr. and Mrs. Lopez?
Q. Okay. And all these robberies we just discussed . . . were in the manner that we said where guns were used and they were . . . threatened with a gun in order to get these possessions?
Q. Okay. Now . . . you agreed with Jeffrey Walker, Jermaine Walker, Jahad Lasane and Elijah Perry that you were all going to commit these acts, these robberies on that morning?
Defendant also admitted he was driving a Jeep he knew was stolen; he possessed the handguns for the purpose of committing the robberies; he attempted to elude the police during a high- speed chase; and after he "crashed the car," he resisted arrest.
On May 5, 2007, the court sentenced defendant in accordance with the plea agreement to an aggregate twelve-year term of imprisonment subject to NERA. Defendant did not appeal his convictions or his sentence.
In July 2008, defendant filed a petition for PCR and was assigned counsel on September 25, 2008. In a supplemental letter brief in support of defendant's petition, PCR counsel argued, among other things, that "trial counsel was ineffective for failing to move for a speedy trial." In addition, defendant claimed he would not have pled guilty if his attorney was willing to try the case, but the attorney "would only stay in [the] case if [defendant] pled guilty."
Following oral argument on January 26, 2010, the PCR court rejected these arguments:
The Petitioner made the application that he had ineffective assistance of counsel because his prior counsel did not move for a speedy trial. It appears from the date of arrest to when he pled guilty the time lapse or the time period was about 19 months. I do not find that that was an unreasonable delay given the facts relating to this case.
This case was a string of robberies. It wasn't just one incident. It involved a number of victims. It was a five Defendant case. There were 10 separate victims. And as set forth in the State's brief, there were four separate police departments involved that generated numerous reports and documents. Bloomfield provided six separate reports. The State provided an Aviation Unit activity report. East Orange provided 15 reports. And Newark provided over 62 reports.
In light of that context, I do not find that the 19 month delay was unreasonable and so I do not find that there was ineffective assistance of counsel on that point.
The next point that Petitioner raises is that his attorney asked to be relieved of counsel. . . . Mr. Jones argues . . . that it was because he could not afford to pay him. Counsel in his papers indicated it was a breakdown in communications.
Regardless, even if he could not afford to pay his private attorney, he could have been assigned to a public defender. And if, in fact, he wanted to go to trial, he could have had an attorney represent him. So, the Court doesn't find that that's a basis for ineffective assistance of counsel either.
The trial court denied defendant's PCR petition, and an order memorializing the court's decision was entered on January 26, 2010. This appeal followed.
Defendant presents the following arguments for our consideration:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TRIAL COUNSEL'S CONDUCT IN FAILING TO PURSUE A SPEEDY TRIAL WAS INEFFECTIVE.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TRIAL COUNSEL'S CONDUCT IN FAILING TO FILE APPROPRIATE MOTIONS AMOUNTED TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TRIAL COUNSEL'S CONDUCT IN FAILING TO ADEQUATELY INVESTIGATE THE CASE AMOUNTED TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TRIAL COUNSEL WAS INEFFECTIVE WHEN FORCING DEFENDANT TO PLEAD GUILTY TO WEAPON'S POSSESSION WHERE NO FACTUAL BASIS EXISTED TO SUPPORT SUCH A PLEA.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TRIAL COUNSEL WAS INEFFECTIVE IN SEEKING TO BE RELIEVED AS COUNSEL AT A CRITICAL STATE IN THE PROCEEDING.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.
ALL POINTS RAISED BY DEFENDANT IN ANY AND ALL PRIOR SUBMISSIONS TO THE COURT ARE HERETOFORE INCORPORATED BY REFERENCE INTO THIS BRIEF.
Based on our review of the record and the applicable legal principles, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11- 3(e)(2). We add only the following comments.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must establish a reasonable likelihood of success under the Strickland/Fritz test.*fn1 State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-prong test, a defendant must first establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Second, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In the present matter, defendant received the benefit of a very favorable plea agreement, and the record fully supports the trial court's determination that he failed to establish that his attorney was deficient. See State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000) ("Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists."). Affirmed.