On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-08-2753.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
Defendant Marcus Toliver appeals from an order dated June 30, 2010, denying his motion for post-conviction relief (PCR) without an evidentiary hearing. Defendant argues that his attorney was ineffective in his presentation to the court at the sentencing hearing after defendant pled guilty to felony murder. N.J.S.A. 2C:11-3(a)(3). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged with co-defendant Ryshaone Thomas in Camden County Indictment No. 02-08-2753 with first-degree murder for killing a young woman by their own conduct, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); first-degree felony murder (count two); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); second-degree conspiracy to commit murder, kidnapping, robbery, N.J.S.A. 2C:11-3, N.J.S.A. 2C:13-1 and N.J.S.A. 2C:15-1 (count five); third-degree possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d) (count six); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven). The State sought the death penalty by serving defendant with a notice of two aggravating factors: the murder was committed to escape detection, N.J.S.A. 2C:11-3(c)(4)(f), and while engaged in the commission of another felony, N.J.S.A. 2C:11-3(c)(4)(g). This procedure of the State designating capital murder charges by serving a notice of aggravating factors was affirmed by the New Jersey Supreme Court. State v. Toliver, 180 N.J. 164, 167-68 (2004).*fn1
Upon arrest, after receiving his Miranda*fn2 warnings, defendant told police the following information. On November 12, 2001, at approximately 8:30 p.m., defendant and Thomas abducted a young woman from the PATCO Speedline*fn3 parking lot near Ferry Station and brought her to a wooded area where they cut, beat and strangled her. They stole her car and valuables.
On March 9, 2005, defendant pled guilty to count two of the indictment. The State agreed to dismiss the remaining counts and recommend a prison term of forty-three years, with an eighty-five percent mandatory period of parole ineligibility pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2. Defendant agreed to waive his right to appeal. R. 3:9-3(d).
Prior to sentencing, defense counsel submitted to the court a twelve-page, single-spaced mitigation report based on extensive interviews with defendant, his relatives and friends.
The report detailed defendant's dysfunctional family life, which included drug and alcohol abuse, as well as physical abuse and neglect. It included accounts of defendant's military history, lack of criminal record and the negative influence of his co-defendant. Fourteen exhibits totaling 360 pages of additional mitigation material were attached to the report. At the sentencing hearing, counsel represented that his client had lived for fifteen years with his father and had been honorably discharged from the National Guard in 2001. The State presented in-court victim-impact statements from the victim's mother, sister, best friend, aunt and uncle. Her uncle objected to what he perceived to be the leniency of the plea agreement.
Defense counsel did not speak further and defendant did not speak, even after the court informed him:
Mr. Toliver, you always have a right to speak at sentencing and this is your opportunity, if you wish to exercise it to speak to me, to speak to the family through me, as to what transpired in November of '01.
The court observed that defendant showed no remorse when the family members spoke. The court also noted that it had read defendant's mitigation material, but found it did not excuse or explain defendant's "barbaric act." The court found three aggravating factors: the nature and circumstances of the offense and the role defendant played, N.J.S.A. 2C:44-1(a)(1);
the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). It also found one mitigating factor, defendant's lack of a prior criminal record. N.J.S.A. 2C:44-1(b)(7). The court found the aggravating factors substantially outweighed the ...