January 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MCKNIGHT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 05-04-0369.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011 -
Before Judges Messano and Yannotti.
On May 4, 2005, defendant Anthony McKnight pled guilty to Mercer County Accusation No. 05-04-0369A, charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4; and count one of Mercer County Indictment No. 04-09-0655-I, charging him with second-degree robbery, N.J.S.A. 2C:15-1. In accordance with the plea bargain, on July 7, 2005, defendant was sentenced on the aggravated manslaughter conviction to a term of twenty-years imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five-year concurrent sentence with an 85% period of parole ineligibility on the robbery conviction. No direct appeal was filed.
Defendant filed a PCR petition on February 17, 2009. He alleged that "serious concerns" arose during the "pre-indictment proceedings," in particular, that he "was under the mistaken impression that the State's recommended sentence was 17 years with the 85% mandatory NERA stipulation"; and, that "trial counsel failed to explain the consequences of proceeding with the Grand Jury Presentment, in the event [defendant] wished to proceed to trial." Defendant alleged that trial counsel told him he would face the "maximum penalty" if "an indictment was returned."
Defendant further claimed that trial counsel failed to investigate the case and "there were two . . . other individuals present at the commission of the offense, but neither was charged with offenses relating to Aggravated Manslaughter." Defendant argued that if a thorough investigation had been conducted, his sentence would have been reduced "as the State would have had [a] stronger case against the co-defendants, with [his] cooperation." Lastly, defendant claimed trial counsel was ineffective because he failed to file a direct appeal.
At oral argument on defendant's PCR petition, now-retired Judge Edward M. Neafsey noted that defendant had already been indicted for murder at the time of his guilty plea, and that the indictment was dismissed as part of the plea bargain in return for defendant's guilty plea to aggravated manslaughter.*fn1 Judge Neafsey then considered each of defendant's claims on their merits and denied the requested relief.
Defendant now raises the following points on appeal:
THE PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED POINT II DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
A. COUNSEL FAILED TO PROPERLY INFORM DEFENDANT OF HIS RIGHTS OF APPEAL WHICH IN TURN CAUSED DEFENDANT TO FAIL TO FILE A DIRECT APPEAL
B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ACCURATELY INFORM THE DEFENDANT OF THE AMOUNT OF PAROLE INELIGIBILITY REQUIRED
C. COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO INVESTIGATE POINT III THE COURT ERRED IN NOT ALLOWING THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF POINT IV THE PETITIONER SHOULD BE PERMITTED TO WITHDRAW HIS PLEA We have considered these arguments in light of the record and applicable legal standards. The contentions lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A defendant must show by "a reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
An evidentiary hearing is required only "[w]here asserted facts in support of a prima facie claim of ineffective assistance of counsel are outside the record . . . ." State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006) (emphasis omitted) (citation and internal quotation marks omitted), certif. denied, 192 N.J. 66 (2007). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Judge Neafsey considered the merits of defendant's petition. As to the argument that trial counsel was ineffective for failing to advise defendant of the consequences of the plea bargain, the judge noted that the claim was belied by the transcript of the plea, since the trial judge explicitly explained defendant's sentencing exposure, defendant indicated his understanding and executed the plea form that accurately stated the terms of the plea bargain. Our independent review of the proceedings supports Judge Neafsey's conclusion.
Citing Cummings, supra, 321 N.J. Super. at 170, Judge Neafsey noted defendant's claim that trial counsel failed to adequately investigate the case was "nothing more . . . than . . . bald allegations." We agree. Defendant failed to provide any facts that supported his contention that further investigation of others involved in the crime would have resulted in a better plea bargain premised upon his cooperation with the State. As we noted above, defendant was indicted for murder, and, through the efforts of trial counsel, was able to negotiate a plea to aggravated manslaughter with a twenty-year sentence. The plea bargain was expressly contingent on defendant providing a "truthful statement [and] testimony regarding" his co-defendants.*fn2
As to the claim that trial counsel was ineffective for failing to file an appeal, and assuming arguendo that defendant requested an appeal be filed, we conclude that defendant failed to meet the second prong of the Strickland/Fritz test. In other words, defendant has failed to prove that he suffered any prejudice due to counsel's deficient performance because he has failed to raise any argument, which if it had been raised on appeal, would have changed the result. Fritz, supra, 105 N.J. at 52.