February 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASUAN THOMPSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-11-2186.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Simonelli and Hayden.
Defendant Rasuan Thompson appeals the August 17, 2009 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The record reveals that on October 20, 2004, defendant entered a guilty plea to one count of first-degree armed robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement under which the State agreed to recommend a maximum fourteen-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2c. The state also agreed to dismiss the remaining counts of the indictment, which included eight additional counts of armed robbery, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b, fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a), and third-degree hindering apprehension, N.J.S.A. 2C:29-3. The indictment was based on charges that defendant and his co-defendant used a handgun to rob nine people at a card game. Thereafter, defendant fled by auto and on foot before the police apprehended him.
Judge Conte sentenced defendant to fourteen years in prison with an eighty-five percent period of parole ineligibility pursuant to NERA with a five-year period of parole supervision. Defendant appealed, challenging several trial court rulings. He also argued that "the sentence imposed by the court was improper and excessive because the court applied incorrect aggravating factors and ignored relevant mitigating factors, while failing to provide an adequate explanation for the factors found." We affirmed defendant's conviction and sentence. State v. Thompson, No. A-2619-04 (App. Div. October 1, 2007). The New Jersey Supreme Court denied defendant's petition for certification. State v. Thompson, 194 N.J. 446 (2008).
Defendant subsequently filed a PCR petition, which was heard before Judge Lipton on August 3, 2009. He raised the following contentions:
POINT I: THE SENTENCE IMPOSED BY THE TRIAL COURT WAS IMPROPER, ILLEGAL AND/OR OTHERWISE UNCONSTITUTIONAL.
POINT II: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT III: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV: AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
POINT V: THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.
Judge Lipton denied defendant's petition, finding that defendant failed to present a prima facie case that he was denied effective assistance of counsel at either the trial or appellate level, or that his sentence was illegal. The judge ruled that Rule 3:22-5, which bars consideration of claims previously adjudicated on the merits, barred defendant's claims relating to his sentence. The judge noted that the claim had been raised on direct appeal and found to lack merit, and defendant failed to show fundamental injustice would result if the court did not consider the claim. She also found, incorrectly, that Rule 3:22-4 barred defendant's ineffective assistance of counsel claim because he should have raised it in his direct appeal.
Addressing the merits of both claims, the judge observed that the sentencing transcript directly contradicted defendant's assertions because it showed that defendant's attorney had argued for a lesser sentence and raised several mitigating factors. Additionally, the judge found that defendant's appellate counsel had raised trial counsel's alleged failure to appropriately argue the aggravating and mitigating factors at sentencing. Finding counsels' performances were not deficient and the sentence was both reasonable and within the sentencing guidelines, the judge denied the petition. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I: THE ISSUES RAISED IN THIS PCR PETITION ARE APPROPRIATE AND CANNOT BE PROCEDURALLY BARRED UNDER RULE 3:22-4 OR RULE 3:22-5.
A. RULE 3:22-4 DOES NOT BAR THE PCR PROCEEDINGS IN THE INSTANT MATTER.
B. RULE 3:22-5 DOES NOT BAR PCR PROCEEDINGS IN THE INSTANT MATTER.
POINT II: THE TRIAL ATTORNEY FAILED TO PRESENT MITIGATING FACTORS THAT WOULD HAVE REDUCED SENTENCE, AND NEGLECTED TO OBJECT TO THE SENTENCING COURT'S RELIANCE ON DEFENDANT'S PRIOR ARRESTS, THEREBY INEFFECTIVELY REPRESENTING DEFENDANT, AND THUS DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.
POINT III: APPELLATE COUNSEL FAILED TO PRESENT A FORCEFUL ARGUMENT REGARDING THE UNCONSTITUTIONALITY OF THE SENTENCE BASED ON THE SENTENCING COURT'S RELIANCE ON DEFENDANT'S PRIOR ARRESTS, THEREBY INEFFECTIVELY REPRESENTING DEFENDANT, AND THUS DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED (partially raised below).
The relevant principles are well-settled. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeus corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief, by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits, is generally entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 463. Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, defendant must first show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Next, defendant must show that his attorney's deficient performance prejudiced his defense. Ibid.
To meet the first prong of the Strickland test a defendant must show that his attorney failed to provide representation that "'was within the range of competence demanded of attorneys in criminal cases.'" Strickland, supra, 466 U.S. at 687, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, the defendant must show that "'there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). This exacting standard requires that the "error committed must be so serious as to undermine the court's confidence in the . . . result reached." Ibid.
We have carefully considered defendant's contentions in view of the applicable law, and we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
We reject defendant's assertion that his sentence was illegal and his trial and appellate counsel were ineffective because they failed to challenge the judge's reliance on his thirteen arrests in considering aggravating factor three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3). We agree with the judge that this argument is both barred by Rule 3:22-5 and without merit. Our Supreme Court has recognized that a sentencing judge "may consider arrests and the actual circumstances of the offense when assessing the threat that a defendant poses to society during the imposition of a sentence." State v. Jones, 179 N.J. 377, 407 (2004) (citing State v. Green, 62 N.J. 547, 571 (1973)). From our review of the entire record, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorneys' performances were deficient or resulted in prejudice to his case. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
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