Opinion
DOCKET NO. A-3510-09T2
02-16-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HASSON GRUNDY,1 a/k/a BILLY COX, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond Hoffman, Special Deputy Attorney General, Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment Nos. 05-04-1053 and 05-08-2029.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Raymond
Hoffman, Special Deputy Attorney General,
Acting Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Hasson Grundy appeals from the September 30, 2009 order of the Law Division dismissing his petition for post-conviction relief (PCR). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Essex County Indictment No. 05-04-1053 (first indictment) charged Grundy with the following offenses arising out of a robbery that took place on September 15, 2004: conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (count one); robbery, contrary to N.J.S.A. 2C:15-1 (count two); receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count three); possession of a weapon without a permit, contrary to N.J.S.A. 2C:39-5(b) (count four); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count five).
A second Essex County Indictment, No. 05-08-2029 (second indictment), charged Grundy with the following offenses arising out of a robbery and murder that took place on June 24, 2004: conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and 2C:11-3(a)(3) (count one); felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); purposeful/knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count three); conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (count four); robbery, contrary to N.J.S.A. 2C:15-1 (count five); possession of a weapon without a permit, contrary to N.J.S.A. 2C:39-5(b) (count six); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count seven).
Grundy accepted a plea offer that required him to plead guilty to counts one (conspiracy), two (robbery), and four (unlawful possession of a weapon) of the first indictment and counts four (conspiracy) and five (robbery) of the second indictment. In return, the State agreed to recommend an aggregate custodial sentence of twelve years, subject to the eighty-five-percent period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining charges, and two other indictments charging weapons offenses, were to be dismissed at sentencing. On November 17, 2005, after satisfying himself that Grundy understood the plea and that there was a factual basis for it, the trial judge accepted the plea. Grundy was sentenced in accordance with the plea on January 13, 2006, and the remaining charges were dismissed.
Grundy filed his PCR petition on October 1, 2008. He alleged that his trial attorney provided constitutionally ineffective representation, including failure to review the discovery with him, failure to take a "pro-active approach" to preparing his defense, and coercing him to accept the plea despite his inability to provide a factual basis. Appointed PCR counsel filed a brief supporting Grundy's argument and seeking an evidentiary hearing.
The same judge who had taken the plea and imposed the resulting sentence heard oral argument concerning the PCR petition on September 30, 2009. He dismissed the petition in an order, accompanied by a written opinion, filed the same day. This appeal followed.
II.
Grundy raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRIN-CIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HE WAS AT LEAST ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.
A.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. Mitchell, supra, 126 N.J. at 579.
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
B.
Our review of the record in this case leads us to the conclusion that Judge Thomas R. Vena correctly concluded that Grundy did not present a prima facie case of ineffective assistance of counsel. Consequently, he was not entitled to a plenary hearing and his petition was appropriately dismissed.
Many of the assertions contained in Grundy's PCR certification directly contradict his sworn testimony at the time of the plea. For example, he claims that he is illiterate, a claim contradicted by the following testimony at the plea hearing:
THE COURT: Do you read, write and understand English?Grundy also complains that his attorney coerced him into pleading guilty, but denied any such coercion when responding to the judge during the plea:
DEFENDANT: I do.
THE COURT: I have in front of me a document which is called a plea form, a copy of which is in front of you as well. Did you have an opportunity to review the questions on the plea form with [your attorney]?
DEFENDANT: Yes, I did.
THE COURT: Did you understand the questions?
DEFENDANT: Yes, I did.
THE COURT: Did you provide answers to the questions?
DEFENDANT: Yes, I did.
THE COURT: Were the answers the truth?
DEFENDANT: Yes.
THE COURT: Anyone threatening you to get you to plead guilty?
DEFENDANT: No.
THE COURT: Anyone forcing you to plead guilty?
DEFENDANT: No.
Rather than making a general claim of innocence, Grundy claimed only that he told his attorney that he "could not honestly give the factual basis the Court would require to enter a guilty plea." At the plea hearing, however, he testified:
THE COURT: You pleading guilty of your own free will?Grundy then gave a specific factual basis for the plea.
DEFENDANT: Yes.
THE COURT: Pleading guilty because you are, in fact, guilty?
DEFENDANT: Yes.
Grundy further claims that he was dissatisfied with his attorney's interactions with him prior to the plea, but testified at the plea hearing:
THE COURT: Are you satisfied with the services you received from . . . your attorney?
DEFENDANT: Yes, I do.
Finally, Grundy makes generalized assertions that he would have been able to go to trial and gain an acquittal had his trial attorney not been ineffective. For example, he points to a report that the gun attributed to him was not loaded. However, as we held in State v. Jules, 345 N.J. Super. 185, 192-93 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002), an unloaded gun is nevertheless considered a "deadly weapon." He also criticizes his attorney for failing to locate a witness, but makes no substantive offer of proof with respect to the witness's allegedly exculpatory testimony.
In Jules, supra, 345 N.J. Super. at 192-93, we were interpreting NERA. However, Grundy was charged with robbery as a first-degree offense. Use of a "deadly weapon" is one of the factors that elevates robbery from a second-degree to a first-degree crime. N.J.S.A. 2C:15-1(b).
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We also determine that the record supports Judge Vena's conclusion that, even if defense counsel had been in some manner deficient, Grundy has failed to make a prima facie case that there would have been a different result, as required by the second prong of Strickland. As noted, the one concrete assertion made by Grundy, that the gun attributed to him was unloaded, would not have changed the result. In addition, as the judge pointed out, Grundy was facing a possible life sentence for murder had he gone to trial. He pled to charges that exposed him to a custodial sentence up to sixty-five years, most of which was subject to NERA, but the plea agreement recommended a sentence of only twelve years subject to NERA.
For all of these reasons, we affirm the order denying Grundy's request for a plenary hearing and dismissing Grundy's PCR petition.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION