Opinion
DOCKET NO. A-5775-11T3
03-17-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RASUL ALLEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-01-0065.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a September 23, 2011, order denying his petition for post-conviction relief (PCR). Defendant contends that he received ineffective assistance of plea counsel. We affirm.
Defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1). Defendant appeared at the plea hearing and, in response to questions asked by his attorney, gave the following factual basis for shooting the victim.
Q. Mr. Allen, I want to direct your attention to September 15th, 2002. Were you in the Township of Lakewood on that day?The plea judge accepted this factual basis and concluded that defendant pled guilty knowingly and voluntarily.
A. Yes.
Q. And during the course of that evening, did you come to the scene in Lakewood where there was a person named Haneef (phonetic) Thomas who was in the midst of a fight with other people?
A. Yes.
Q. During the course of that did you get involved in that fight where you produced a gun?
A. Yes.
Q. You agree that what happened is, the gun was discharged in a way where you consciously disregarded a known risk that Haneef Thomas might be shot and killed; correct?
A. Yes.
Q. And you knew that by that happening there was a probability that, if he was shot, he would die?
A. Yes.
In defendant's statement of facts in his brief before the PCR judge, he set forth the information gleaned from the prosecutor's investigation and a statement given to investigators by Dennis Singleton. The investigation disclosed that Thomas and Singleton were sitting on the porch of a residence on Ocean Avenue in Lakewood when a red Isuzu Rodeo containing three females pulled up. Those females got into an argument with females in another vehicle. One of the females in the Rodeo, later identified as defendant's sister Raquel Presley, was observed by Singleton speaking on her cell phone to an individual named "Irule." Shortly thereafter, defendant rode up on a bicycle, approached Thomas and Singleton and said, "Are you f**king with my sister?" He then shot both men. Defendant proceeded to the Rodeo, got in the back seat, and the vehicle left the area. Defendant's fingerprint was retrieved from the bicycle.
The investigation report also disclosed an interview with Deborah Boykin. Boykin, one of the females in the Rodeo, said they went to the Ocean Avenue location to buy marijuana, and that Thomas came over to the car and sold some to them. She stated that Presley started arguing "with the guys on the porch." Boykin stated that Presley was on her cell phone when Boykin heard gunshots and the person who did the shooting jumped into the rear passenger side of the car. Boykin drove the shooter a couple of blocks away and dropped him off.
In accordance with the plea agreement, the judge sentenced defendant to twenty years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed and we affirmed the sentence on our excessive sentencing calendar. State v. Allen, No. A-1215-07 (App. Div. September 22, 2009).
Defendant filed a petition for PCR contending primarily that his plea counsel was ineffective by failing to (1) conduct an adequate pre-trial investigation; (2) object to the factual basis; (3) argue for the original plea agreement for a fifteen-year sentence; and (4) make a motion for the judge's recusal. Defendant also contended that appellate counsel was ineffective for failing to raise meritorious issues on appeal.
Judge James Den Uyl conducted oral argument and issued a comprehensive oral opinion. Judge Den Uyl stated that:
Petitioner asserts trial counsel failed to adequately investigate a self-defense, defense of third-party defense. However, the facts do not support any inference that the Petitioner was acting in defense of his sister. There is nothing in the record, nothing provided to me by way of Affidavits or Certifications that even would give rise to an allegation or an argument that that defense would apply.The PCR judge considered and rejected the remaining contentions raised by defendant and then denied defendant's petition. This appeal followed.
On appeal, defendant raises the following points:
POINT I
THE DEFENDANT'S PLEA SHOULD BE SET ASIDE TO PREVENT A MANIFEST INJUSTICE.
POINT II
THE PLEA AGREEMENT SHOULD BE SET ASIDE DUE TO AN INADEQUATE FACTUAL BASIS.
POINT III
THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY COUNSEL'S FAILURE TO INVESTIGATE THE DEFENSE OF ANOTHER.
POINT IV
THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING.
We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by the PCR judge in his comprehensive opinion.
Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION