June 19, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JEROME HYMAN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2012.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-09-1530.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
Before Judges Graves and Guadagno.
Defendant Jerome Hyman appeals from a July 29, 2009 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged in a three-count indictment with first-degree murder for knowingly or purposely causing the death of Shawn Maples (count one); second-degree possession of a firearm for an unlawful purpose (count two); and second-degree possession of a weapon by a convicted person (count three). In a separate indictment, he was charged with second-degree witness tampering.
Pursuant to a negotiated agreement, defendant pled guilty to count one, which was amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). In exchange for the plea, the State agreed to dismiss the remaining charges and to recommend a twenty-five year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
During the plea hearing, defendant confirmed he understood the plea agreement, he entered into the agreement voluntarily, and he was satisfied with the legal services his attorney provided. Defendant admitted that on October 31, 2007, he possessed a loaded pistol, and that he fired two shots at Maples. Defendant stated he did not intend to shoot Maples, but the second shot caused the victim's death. Defendant further admitted that the victim "did not exhibit any weapon."
In addition, when questioned by the court, defendant testified as follows:
COURT: Mr. Hyman, do you have any questions?
DEFENDANT: No, Your Honor.
COURT: And your attorney has just gone over with you the elements of an aggravated manslaughter which requires that, one, you caused Mr. Maples's death. You've acknowledged that today.
COURT: And that you did so recklessly and under circumstances manifesting extreme indifference to human life. You're admitting and taking responsibility for that today, sir?
COURT: All right. And you knew when you took out the weapon that it was a conscious disregard by you of a substantial risk that death could result from your discharging that weapon?
COURT: How far was he when the weapon was discharged?
DEFENDANT: Maybe five or six feet.
COURT: Five or six feet? All right. Do you have any questions, sir?
On October 14, 2005, the court sentenced defendant in accordance with the plea agreement to a twenty-five year prison term with a mandatory period of parole ineligibility under NERA. The court also imposed statutory penalties and assessments, and ordered restitution to the Victims of Crimes Compensation Board in the amount of $21, 501.31.
Defendant appealed and the matter was placed on a sentencing calendar pursuant to Rule 2:9-11. On November 14, 2007, we affirmed defendant's sentence but vacated the order of restitution and remanded for a restitution hearing. Following the hearing, the amount of restitution was reduced to $5000. The Supreme Court denied defendant's petition for certification on May 6, 2008. State v. Hyman, 195 N.J. 520 (2008).
On April 1, 2008, defendant filed his petition for PCR. Among other things, defendant claimed he "did not make any admission which would satisfy the factual basis requirement for aggravated manslaughter." Defendant also stated that his attorney was ineffective for failing to explain the difference between aggravated manslaughter and reckless manslaughter. Defendant argued he should be allowed to withdraw his plea and start over or, alternatively, he should be allowed to plead guilty to second-degree reckless manslaughter.
Following oral argument on July 29, 2009, the PCR court rendered a comprehensive oral decision and denied defendant's request to vacate his plea. The court found defendant provided an adequate factual basis for the plea and entered it knowingly and voluntarily. The court also denied defendant's request for an evidentiary hearing because defendant failed to satisfy "either the first or second prong of the Strickland/Fritz test."
On appeal from the denial of his petition, defendant presents the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED, AND THE DEFENDANT'S GUILTY PLEA AND CONVICTION VACATED, BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST PLEADING GUILTY TO A CRIME HE DID NOT COMMIT WAS VIOLATED.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT ESTABLISHED THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
A. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE AS AN ISSUE ON DIRECT APPEAL THE LACK OF A FACTUAL BASIS FOR THE DEFENDANT'S PLEA TO AGGRAVATED MANSLAUGHTER.
B. THE CUMULATIVE IMPACT OF ERRORS AND OMISSIONS BY TRIAL AND APPELLATE COUNSEL DENIED DEFENDANT A FAIR AND RELIABLE RESOLUTION OF THE CHARGES AGAINST HIM.
Based on our review of the record and the applicable law, we conclude these arguments are clearly without merit, Rule 2:11-3(e)(2), and only require the following comments.
To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz two-prong test. Under the first prong, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J.Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nuñez-Valdéz, 200 N.J. 129, 138-39 (2009) (quoting State v. Preciose, 129 N.J. 451, 463-64 (1992)). In the context of a guilty plea, a defendant must demonstrate that he would not have pled guilty but for his counsel's defective representation. Id. at 139 (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).
In this case, the PCR court concluded that defendant failed to meet both prongs of the Strickland/Fritz test, and the record fully supports that determination. Accordingly, the order denying defendant's PCR petition is affirmed substantially for the reasons stated by Judge James Den Uyl on July 29, 2009.