Opinion
DOCKET NO. A-3326-12T2
01-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DERRICK GRIMSLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Rachel G. Cook, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-03-0404. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Rachel G. Cook, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Derrick Grimsley appeals from the denial of his motion for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
Defendant and a co-defendant, Sylvester Livingston, were tried together before a jury in January 1999 on charges arising from a robbery and shooting in Trenton. Both were found guilty of attempted murder, carjacking, robbery, and other offenses.
Evidence at the trial showed that, in the early morning hours of August 8, 1995, three men — defendant, Livingston, and another man — came upon a man using a pay telephone at a closed gas station. Defendant and Livingston confronted the man with a gun and shot him. They then stole his car. A witness saw some parts of the incident from his home, and another witness came upon the shooting scene and helped get the victim to a hospital. The victim survived and, at a later time, identified Livingston as one of the assailants.
Police investigation initially led to the third man who was with defendant and Livingston. The third man cooperated with the police, identified defendant and Livingston, and testified at their trial. The jury convicted defendant and Livingston of all the charges.
Defendant had a criminal history that included two prior convictions for robberies, on which he had been sentenced in December 1985. On the charges in the present case, defendant was originally sentenced to an extended term of life imprisonment plus ten years, with a total of thirty years of parole ineligibility. Livingston was similarly sentenced to life imprisonment with a lengthy period of parole ineligibility.
On direct appeal, we affirmed the conviction and sentence of Livingston in all respects. State v. Livingston, 340 N.J. Super. 133, 147 (App. Div.), certif. denied, 170 N.J. 206 (2001). By the same opinion, we affirmed the jury's verdict as to defendant, but we vacated and remanded for his resentencing on the carjacking charge because the extended term sentencing provision of the Graves Act, N.J.S.A. 2C:43-6(c), did not apply to that charge. Ibid.
The Supreme Court rejected the State's further appeal of a sentencing issue pertinent to defendant but not relevant to the present PCR appeal. State v. Livingston, 172 N.J. 209 (2002).
On remand, defendant was sentenced to thirty years imprisonment with twenty-five years of parole ineligibility for attempted murder, and to thirty years imprisonment with fifteen years of parole ineligibility for carjacking, the sentences to run concurrently. By order pursuant to Rule 2:9-11, we affirmed the sentence on further direct appeal. State v. Grimsley, No. A-1137-06 (App. Div. Aug. 20, 2008).
In the meantime, defendant filed a PCR petition, which the trial court dismissed without prejudice because the direct appeals were then pending. After exhaustion of the direct appeals, the trial court reinstated the PCR petition and deemed it to have been timely filed. See R. 3:22-12. The court reviewed the submissions on the PCR petition, heard oral argument, and denied the petition by means of a comprehensive written decision.
On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed to Consult with Defendant Regarding the Evidence and Failed to Prepare His Defense, Including Not Pursuing an Alibi Witness.
B. Trial Counsel Failed to Inform Defendant That He Was Subject to an Extended Term.
We have reviewed the record and the briefs. We affirm the decision of the trial court essentially for the reasons stated in the written decision of Judge Mark Fleming dated November 29, 2012. We briefly add the following.
Defendant argues that his trial attorney's representation was deficient because: (1) counsel failed to consult with him in preparation for the trial and, as a result, did not produce as a witness defendant's girlfriend, Iris Livingston, who would have provided an alibi for him; and (2) counsel failed to inform defendant before the trial that both defendant and Livingston were subject to an extended Graves Act sentence, and counsel's failure resulted in defendant not being able to accept the prosecution's plea offer for a more lenient sentence.
With respect to the first argument, defendant has not produced evidence that the girlfriend would actually have provided alibi testimony for him. Other than his own assertion made some fifteen years after the crimes, defendant does not have proof that there was exculpatory evidence available for use in his defense at the time of his trial in 1999. Furthermore, without the specifics of what the girlfriend would testify, the PCR court had no basis to gauge whether the testimony might have caused "the result" of the trial to "have been different." See State v. Loftin, 191 N.J. 172, 198 (2007) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).
With respect to the second argument, the prosecution made a pretrial plea offer to both defendant and Livingston for a sentence of twenty-five years imprisonment with twelve-and-a-half years of parole ineligibility, but the plea offer was available only if both defendant and Livingston accepted it. Defendant does not claim his attorney's alleged failure to inform him that he was subject to an extended Graves Act sentence affected his own decision whether or not to accept the plea offer. See State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002), rev'd after remand, 200 N.J. 183 (2009). Defendant was willing to take the plea offer despite allegedly being misinformed about his maximum sentencing exposure. Instead, he argues that Livingston was not willing to accept the offer because Livingston, too, believed that his maximum exposure was thirty years, not life imprisonment. Defendant argues that if Livingston had been informed of his correct sentencing exposure before trial, Livingston would have accepted the plea offer, thus giving defendant the opportunity also to accept the same plea offer. Defendant has provided a certification from Livingston supporting this claim.
Of course, defendant's attorney did not represent Livingston and could not be responsible for deficient advice given to Livingston. Defendant argues that he, defendant, could have convinced Livingston to take the plea offer if defendant himself had been correctly advised by his own attorney.
Defendant's belief that he would have persuaded Livingston to take the plea offer is too speculative and remote to warrant relief on a PCR petition. Fifteen years after the crimes were committed, and with both defendants serving lengthy prison sentences, the trial court would be hard-pressed to credit the hindsight claim of Livingston that defendant would have persuaded him to take a plea offer that he rejected. Also, defendant had no evidence in his PCR petition that Livingston's attorney provided inaccurate advice about sentencing exposure.
Our record also does not include transcripts of pretrial proceedings at which the court might have informed both defendant and Livingston of their exposure to an extended term sentence, see R. 3:9-1(e), even if their own attorneys did not independently do so.
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Furthermore, defendant had earlier opportunities to raise this issue but did not do so. When he was initially sentenced to an extended life term, defendant did not claim that he was unaware of the possibility of an extended term sentence. See Livingston, supra, 340 N.J. Super. at 139 (listing issues raised by defendant on direct appeal); see also R. 3:22-4(a) (generally precluding from PCR relief issues that could have been raised in prior proceedings).
The trial court did not err in concluding that defendant's bald assertions many years after his conviction were not sufficient to demonstrate a prima facie case of entitlement to PCR relief.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION