August 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VLADIMIR DERYCE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-12-2620.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012
Before Judges Messano and Yannotti.
Defendant Vladimir Deryce was charged in count one of Atlantic County Indictment No. 04-12-2620 with the first-degree murder of Phillip Collins, N.J.S.A. 2C:11-3(a)(1) and (2), and, in count two, with the felony murder of Collins, N.J.S.A. 2C:11-3(a)(3). Darnell Hughes was charged as defendant's co-defendant in count two. On August 19, 2005, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), a lesser-included offense of count one. Pursuant to the plea bargain, the State was free to recommend a maximum sentence of thirty-years' imprisonment with a fifteen-year parole disqualifier.*fn1
Under oath, defendant told the judge that he was satisfied with his attorney's advice, understood the terms of the plea bargain and was voluntarily waiving his right to a trial and pleading guilty. Defendant further acknowledged his understanding of the plea forms and that he had answered all the questions truthfully. The plea forms indicated that defendant waived his right to appeal and agreed to testify against his co-defendant.
Defense counsel questioned defendant regarding the factual basis for the plea. Defendant admitted that he possessed a firearm, entered a cab with Hughes, and fired two shots in the direction of the cab driver's head from a distance of two to three feet.
Defendant was subsequently sentenced on October 14, 2005 in accordance with the plea agreement. He filed no direct appeal, but, on March 17, 2009, defendant filed a pro se petition for post-conviction relief (PCR). Defendant alleged his trial counsel provided ineffective assistance and his sentence was disparate to that imposed on Hughes.
PCR counsel was appointed and filed a supplemental verified petition and supporting brief. Defendant certified that the factual basis for his guilty plea was inadequate because he "never admitted that [he] unequivocally caused the death of the victim." He further claimed that trial counsel never advised that he could file a direct appeal. Defendant also contended that his "sentence was grossly excessive in comparison" to that imposed on Hughes.
The PCR hearing took place on August 11, 2010 before Judge Charles Middlesworth, Jr., who was not the trial judge. On January 11, 2011, Judge Middlesworth entered an order and written opinion denying defendant's PCR claims. The judge set forth the procedural history we have outlined above. He concluded that defendant's petition was procedurally-barred pursuant to Rule 3:22-4 because it "could have reasonably been brought on [defendant's] direct appeal" but none was filed.
Judge Middlesworth nevertheless considered the merits of defendant's petition.
The judge determined that defendant's allocution at the time he pled guilty "was sufficient to establish that the cab driver's death . . . was most certainly within the risk of which petitioner was aware when he fired two shots at the driver's head." He concluded any argument that the factual basis was inadequate was "meritless."
Judge Middlesworth then considered defendant's disparate sentence claim. On the same day defendant admitted his guilt, Hughes pled guilty to second-degree manslaughter, N.J.S.A. 2C:11-4(b), and was ultimately sentenced to seven years' imprisonment with a three and one-half year parole disqualifier.*fn2
Citing an abundance of case law, Judge Middlesworth stated:
[D]isparate sentences among co-defendants require a second look when the co-defendants were similarly situated, or when a defendant who played a lesser role in the crime received a greater sentence than a co-defendant who played a superior role.
In this case, the defendants were not convicted of the same offense. The co-defendant was convicted of second[-]degree manslaughter, which has a maximum sentence of [ten] years. The petitioner [pled] guilty to first[-]degree aggravated manslaughter which carries a maximum sentence of thirty years. The petitioner acknowledged during his plea that he understood . . . the State would seek the maximum penalty. The petitioner, not his co-defendant, was the one who actually shot the victim twice in the head. . . .
The case law cited by the petitioner does not support his argument that his sentence was illegal due to disparity. These sentences were the result of a bargained for plea agreement. The defendants were convicted of different charges that carried different maximums. The petitioner played a greater role in the commission of the homicide than his co-defendant. Therefore, the petitioner's argument is meritless.
Judge Middlesworth denied the petition, and this appeal followed.
Before us, defendant raises the following arguments:
THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S CLAIMS WERE PROCEDURALLY BARRED BY R. 3:22-4 AND IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE MERITS.
POINT TWO TRIAL COUNSEL WAS INEFFECTIVE IN PERMITTING DEFENDANT TO ENTER A PLEA TO AGGRAVATED MANSLAUGHTER WITHOUT A SUFFICIENT FACTUAL BASIS.
POINT THREE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ARGUE THAT [DEFENDANT'S] SENTENCE WAS DISPARATE TO THAT OF HIS CO-DEFENDANT, DARNELL HUGHES.
We have considered these arguments in light of the record and applicable legal standards. We conclude the contentions lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Middlesworth in his comprehensive written decision. We add the following brief comments.
We need not consider defendant's argument raised in Point One. Judge Middlesworth fully considered the substantive arguments he raised and determined they were "meritless."
When asserting 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 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
The record amply demonstrates that trial counsel negotiated a favorable plea agreement for defendant, and the transcript of the plea allocution belies defendant's claims that he did not provide an adequate factual basis or that trial counsel failed to inform him of the waiver of his right to appeal. In any event, defendant has utterly failed to demonstrate any prejudice based upon trial counsel's performance.
Regarding the disparate sentence argument, gross "[d]isparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). "The trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Id. at 233. Although we have not been provided with the information regarding Hughes's sentencing criteria, we have no trouble concluding that his situation, and that of defendant, were not "substantially similar."