July 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE GRANUM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-00689.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 19, 2012
Before Judges Axelrad and Parrillo.
Defendant Tyrone Granum appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Indicted for second-degree eluding, N.J.S.A. 2C:29-2b; third-degree forgery, N.J.S.A. 2C:21-1; and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(4), defendant pled guilty to eluding in exchange for the dismissal of the other charges and the State's recommendation of a flat ten-year term to run concurrent with sentences defendant was already serving under another indictment and accusation, and its agreement not to pursue an extended-term.
At sentencing, on April 21, 2006, defense counsel represented discrepancies in the number of defendant's prior arrests, which the pre-sentence report (PSR) quantified at twenty-five, whereas, according to defendant's recollection, he was previously arrested only nine times. The sentencing judge accepted defense counsel's representations and amended the PSR accordingly. Defendant was sentenced, in accordance with the plea agreement, to a flat ten-year term to run concurrent with the sentences he was then serving. Despite the court's oral amendment, the PSR was sent to the Department of Corrections (DOC) apparently unchanged. Defendant never appealed from his judgment of conviction.
When defendant first became eligible, on January 27, 2009, he was denied parole by an Adult Panel of the Parole Board. The Panel cited various reasons for its denial, including: prior criminal record is extensive and repetitive; nature of criminal record increasingly more serious; presently incarcerated for multi-crime convictions; prior opportunities on probation have failed to deter criminal behavior; and prior opportunities on probation have been violated in the past. Next to the check box "[p]rior criminal record is extensive and/or repetitive[,]" there is a hand-written notation "incl. 24 arrests."
Defendant administratively appealed the Panel's decision to the full Board, taking issue with, among other facts, the number of arrests relied on by the Panel, who, by the way, had a transcript of defendant's April 21, 2006 sentencing. The Board affirmed the Panel's denial of parole, finding, based on all the reasons cited by the Panel and the totality of facts before it, that "there is a reasonable expectation that [defendant] would violate the conditions of parole if released on parole at this time." Defendant never appealed this final agency determination.
Instead, defendant filed the instant PCR petition, alleging counsel was ineffective for failing to correct the PSR; that as a result of this error, defendant was denied parole; and that had he been aware of his ineligibility for parole, he would not have pled guilty. The PCR judge denied relief, finding no prejudice to defendant:
Focusing on the second prong of the Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] test, it is far from clear that the Parole Board's decision would have been different, but for prior counsel's actions. The Parole Board based its decision to deny [defendant's] parole on over eight different factors, only one of which related to his prior arrests. The defendant has not in any way shown the issue of his prior arrests to be essential to the Parole Board's decision. It is certainly possible that, regardless of prior counsel's failure to correct defendant's arrest record, the Board would have found that the body of evidence, in its totality, rendered [defendant] unfit for parole. [Defendant] has not met the second prong of the Strickland test, and it is therefore unlikely that his claim would ultimately succeed on the merits. Accordingly defendant is not entitled to an evidentiary hearing.
On appeal, defendant argues:
THE FAILIRE OF TRIAL COUNSEL TO FORMALLY CORRECT THE PRE-SENTENCE REPORT SO THAT PAROLE WOULD HAVE AN ACCURATE RECORD OF PETITIONER'S PRIOR RECORD RESULTED IN PETITIONER BEING WRONGFULLY DENIED PAROLE. AS SUCH, A HEARING IS REQUIRED TO DETERMINE WHY COUNSEL DID NOT FORMALLY MOVE TO AMEND THE REPORT, AS WHAT APPEARS IN THE RECORD IS A VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
As a threshold matter, the issue, although phrased in "ineffective assistance of counsel" terminology, actually concerns a determination of the Parole Board, a State administrative agency whose final decisions are directly reviewable here, Rule 2:2-3(a)(2), and from which no appeal has been taken by defendant. In contrast, a PCR petition is "captioned in the action in which the conviction was entered[,]" Rule 3:22-1, and serves as a collateral attack upon that conviction. R. 3:22-2(d). Here, as noted, defendant is challenging the action of the Parole Board, which is simply not cognizable in a PCR petition.
But even assuming the issue is properly before us, defendant's claim of ineffective assistance of counsel fails. The analytic framework that controls our review is well-recognized. 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.'" 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). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58. So measured, defendant has failed to satisfy both the performance and prejudice prongs of the Strickland test.
As to the former, defense counsel informed the trial court at sentencing of the alleged discrepancies in the PSR, and the judge amended the PSR to reflect counsel's representations. Consequently, the trial court sentenced defendant on the basis of the amended PSR, and the Parole Board reviewed defendant's sentencing transcript in reaching its decision. Moreover, it is the responsibility of court staff to transmit the PSR to the DOC, Rule 3:21-2(c), and the court itself is authorized to order an updated or corrected PSR. N.J.S.A. 2C:44-6; State v. Mance, 300 N.J. Super. 37, 65-66 (App. Div. 1997). Under the circumstances, then, defendant has failed to demonstrate that counsel's conduct fell outside the professional norm.
And as the PCR judge found, defendant has also failed to demonstrate any prejudice resulting from the alleged performance deficiency. As noted, the Parole Board reviewed the sentencing transcript. Also, there is no suggestion in the record that the number of defendant's arrests was given undue weight by the agency. On the contrary, the Board considered numerous other factors that weighed heavily against parole, including defendant's convictions for multiple weapons offenses and federal crimes. Given the plethora of aggravating factors militating in favor of denial, and the scarcity of mitigating circumstances supporting release on parole, it is highly unlikely that the claimed discrepancy in the number of defendant's arrests had any impact on the Board's final decision.
Having failed to satisfy either the performance or prejudice prongs of the Strickland test, defendant was not entitled to prevail on his PCR petition.
© 1992-2012 VersusLaw Inc.