Opinion
DOCKET NO. A-3857-13T4
02-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESSICA BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-08-0684. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jessica Brown appeals from the dismissal of her petition for post-conviction relief (PCR), contending that she established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.
Defendant was indicted on a charge of second-degree robbery, N.J.S.A. 2C:15-1, arising out of her forcible attempt to snatch a necklace from another woman's neck and steal her purse on a public bus. She pled guilty pursuant to a negotiated agreement in exchange for a recommended sentence of four years, subject to the periods of parole ineligibility and supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Although finding aggravating factors three, six and nine predominated over the non-existent mitigating factors, the sentencing judge weighed defendant's history of bipolar disorder and depression and that her use of force was on "the lower end" in imposing a three-and-a-half-year NERA term. Although defendant claims we affirmed her conviction, the appellate clerk's office has no record of any direct appeal.
Although claiming we affirmed her conviction on May 12, 2009, defendant has not provided us a docket number, and the clerk's office has no record of any appeal. Neither the parties nor the trial court has been able to locate proof of any appellate filing. Defendant was sentenced on February 9, 2009, making an opinion filed by this court on May 12, 2009 reviewing her conviction practically impossible.
Defendant filed a timely petition for post-conviction relief based on claims of ineffective assistance of trial counsel. Defendant claimed her trial counsel failed to investigate defenses and pressured her to enter a guilty plea. After hearing the argument of counsel, the judge issued a written opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992).
The judge found no support in the record for defendant's claim that her counsel failed to explore the merits of an insanity or identification defense. Specifically, the judge noted that the plea transcript established that counsel was well aware of defendant's mental condition, and that her condition influenced the court to accept counsel's argument to impose a more favorable sentence than called for in the plea agreement. Moreover, defendant failed to adduce any evidence that an insanity defense could have been successfully pursued. The judge further noted that counsel had filed a Wade motion, thus evincing his consideration of potentially meritorious defenses to the charge. He rejected defendant's claim that her counsel had pressured her into pleading guilty because it was clearly contradicted by defendant's lengthy plea colloquy, which the judge quoted in his opinion denying the petition.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
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The court also addressed the argument defendant pressed on her own behalf that her use of force was insufficient to satisfy the force element of the statute. Because the claim could have been raised on direct appeal, the judge found it barred pursuant to Rule 3:22-4. See State v. Echols, 199 N.J. 344, 357 (2009).
On appeal, defendant presents the following arguments:
POINT I
THE DEFENDANT MET [HER] BURDEN BY A PREPONDERANCE OF THE EVIDENCE AND ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ STANDARD. THE PCR COURT COMMITTED ERROR BY DENYING THE PCR PETITION WITHOUT GRANTING AN EVIDENTIARY HEARING.
POINT II
THE PCR COURT COMMITTED ERROR BY DENYING THE DEFENDANT'S PCR PETITION ON THE ISSUE THAT THE FACTUAL STATEMENT DID NOT SATISFY THE ELEMENTS FOR A SECOND DEGREE ROBBERY.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Mega's January 10, 2014 written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION