Opinion
DOCKET NO. A-3199-11T4
03-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MESHACH GREENE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 95-11-1254.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief). PER CURIAM
Defendant Meshach Greene appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial court properly concluded that the evidence was inadequate to sustain defendant's burden, we affirm.
A jury convicted defendant of murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder, N.J.S.A. 2C:11-3a(3); conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; armed robbery, N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a handgun, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6. The judge imposed an aggregate sentence of life plus twenty years, with a forty-year period of parole ineligibility. We affirmed defendant's convictions and sentence in an unpublished opinion. State v. Greene, No. A-6057-96 (App. Div. Nov. 12, 1999). The Supreme Court denied defendant's petition for certification. State v. Greene, 163 N.J. 396 (2000).
The convictions arose out of an armed robbery. Defendant and two confederates targeted two young women sitting in a parked car in a residential section of Paterson. One was a Rutgers student who had just returned from a study trip abroad. Her long-time friend had come to her family's house to welcome her from the airport. Shortly after 11 p.m., the two young women went out to smoke cigarettes; neither took a purse. As they sat smoking in the car on a warm summer evening with the windows down, the men approached them and demanded money. When they learned that the women had none to give them, one of defendant's companions shot and killed the Rutgers student.
The three men were eventually apprehended through defendant's fingerprints lifted from the car. Defendant and one of his companions gave statements admitting their roles in the crime and implicating the third man as the shooter. The State offered the three a "package" plea bargain in which each would serve forty years, with twenty years of parole ineligibility. The offer was contingent on acceptance by all three. The State withdrew that offer after it was rejected by one of the men. Shortly after the State withdrew its offer, the shooter was convicted at trial.
Following that conviction, defendant appeared at the final status conference prior to his trial, where the following colloquy took place:
[THE COURT:] Gentlemen, this matter was brought back here today for final status conference.
And . . . you're prepared to place on the record the plea offer that the State is willing to make to both of these defendants. Is that correct, sir?
[Prosecutor]: Yes Judge.
I had initially extended the offer that had been made to these defendants initially which would have involved them pleading
guilty to certain counts of the indictment and would have had the State recommend a sentence of 40 years with 20 years before parole.
That was a plea offer that was made to three defendants and it was an offer that had to be accepted by all three. It was rejected at that time by at least one defendant. Therefore, we begin going to trial.
The defendant Corey Miller was tried. However, at this point I decided to extend the plea offer to these defendants and continue having it open. That plea offer again would have involved the defendants pleading guilty to several counts of the indictment. The murder count would have been amended to a reckless manslaughter. The felony murder count would have been dismissed. The defendants would have been required to plead guilty to a conspiracy to commit robbery, two first degree robberies on the two victims in this matter as well as possession of a weapon for an unlawful purpose. The remaining counts of the indictment would have been dismissed. The sentence recommendation would still have been 40 years with 20 before parole.
THE COURT: All right. [Defense counsel], I know that you have been talking to your client for some time now on this plea offer because you've been discussing this matter with the Court as well. What's your client's position?
[Defense Counsel]: My client indicates to me, your Honor, that he rejects the State's offer. He wants to go to trial.
THE COURT: Mr. Greene, is that true, sir?
[DEFENDANT]: Yes, sir.
THE COURT: The plea offer that's being made to you[,] you've got to plead guilty to certain counts of the indictment. The State would recommend 40 years with 20 years before parole. That's rejected. You will go to trial. You go to trial on the murder count of the indictment as well as the felony murder and if you're found guilty you're facing a substantially longer period of imprisonment. Do you understand that?
[DEFENDANT]: Yes, sir.
THE COURT: The plea offer is for 40 and 20.
You want to reject that. Is that correct?
[DEFENDANT]: Yes, sir.
. . . .
THE COURT: Do you understand . . . that once this plea offer is rejected today that I'm not going to take it back again? This case is going to be set down for a trial and it's going to be tried very quickly. If you're found guilty after a trial, you're looking at a substantially longer period than what is being offered now by the State.
Do you understand that?
. . . .
THE COURT: In theory, I'm only saying in theory, you could be looking at a possibility of up to 50 years before parole if you go down on the entire indictment. Do you understand that?
. . . .
[DEFENDANT]: Yes
Following the Court's denial of certification, defendant filed a timely petition for PCR alleging he received ineffective assistance of counsel in connection with the plea negotiations. Specifically, defendant claimed that his counsel advised him that he faced a maximum sentence of life with thirty years parole ineligibility if convicted at trial, and that he consequently rejected a plea offer of thirty-six years with eighteen years parole ineligibility. Defendant certified that "[i]f I had known that I could have received the sentence I did, of 40 years to life[,] I would have accepted the State's final plea offer of a maximum term not to exceed 36 years and a mandatory minimum not to exceed 18 years. . . While I was indicted on both murder and felony murder charges, [my counsel's] discussions with me were mostly concerned with felony murder."
Defendant filed his petition on August 25, 2000. The matter was not heard until November 4, 2011. We do not know the reasons for the extraordinarily long delay.
After hearing argument by assigned counsel, the trial court issued an oral opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. State v. Preciose, 129 N.J. 451, 462-64 (1992). Specifically, the judge found that defendant offered no evidence of any plea offer other than the one quoted from the transcript. Moreover, the judge found that the trial judge had explained to defendant that he would be tried for murder, as well as for felony murder, and if convicted faced the possibility of serving fifty years before he would be eligible for parole. Accordingly, the judge found defendant's claim that he was not advised of his true exposure flatly contradicted by the record and totally without merit.
Defendant renews his arguments on appeal and adds that his petition should not have been dismissed without an evidentiary hearing. Our review of the record convinces us that the judge carefully considered defendant's claims. We agree that defendant failed to demonstrate that the performance of his counsel was substandard or that, but for the alleged errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). Accordingly, we affirm for substantially the same reasons expressed by the judge in his oral opinion.
We also reject defendant's argument that the judge should have held an evidentiary hearing on the petition. A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. Preciose, supra, 129 N.J. at 462; R. 3:22-10(b). No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under Strickland. Preciose, supra, 129 N.J. at 462-63. As defendant did not establish a prima facie case for relief, no evidentiary hearing was required.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION