Opinion
DOCKET NO. A-4499-13T4
09-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYSHEED HAWKINS, a/k/a TYION HAWKINS, and TYSHEED A. HAWKINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Suter. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 11-03-0271 and 11-03-0275. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Tysheed Hawkins pled guilty to second-degree possession of a weapon during the commission of a controlled dangerous substance (CDS) offense, N.J.S.A. 2C:39-4.1(a), and second-degree possession of a firearm by certain persons prohibited from possessing a firearm, N.J.S.A. 2C:39-7, a charge contained in a second, separate indictment. Defendant acknowledged under oath that he understood the terms of the plea bargain and was pleading guilty voluntarily after having adequate time to discuss the case with his attorney. Defendant provided a factual basis for both pleas.
At one point during the proceedings, defendant indicated that he hoped to receive a lesser term than provided for by the plea bargain, and the judge indicated that such an argument could be made at the time of sentencing. However, the judge told defendant "you ought to assume that these are the sentences you're going to get." Indicating that he was "tired of coming back and forth" to court, defendant knowingly and voluntarily waived his right to be present at sentencing. At sentencing, defense counsel only urged the judge to impose a sentence in accordance with the plea bargain, which the judge did. He sentenced defendant to a term of seven years in prison with a thirty-month period of parole ineligibility on the CDS/gun offense, and a concurrent five-year term with five years of parole ineligibility on the certain persons offense.
At the time, defendant was serving a custodial sentence for violating probation. --------
Defendant did not file a direct appeal but rather filed a timely pro se petition for post-conviction relief (PCR). He alleged that the drugs recovered were not for distribution but rather for personal use; that police searched a home that was not defendant's; and that he only agreed to the sentence because he was to be given "all [his] jail credits," which he did not receive at sentencing. Defendant stated he was "trying to get . . . a [five] year sentence with a [three] year parole disqualifier."
PCR counsel was appointed, and defendant filed a supplemental certification alleging the ineffective assistance of plea counsel (IAC). Defendant claimed plea counsel "never investigated [his] case in order to negotiate a lower plea," "pressured [him] into" pleading guilty and never explained that defendant "would face the full sentence recommended by the State." Defendant claimed plea counsel led him to believe he "could receive a lower term and jail credits," and, had defendant known that he "would certainly face the full term, [he] would have refused to plead guilty." Defendant also certified that plea counsel failed to prevent "any mitigating factors at the time of sentence." Additionally, defendant claimed that "[i]f [he] had understood that [he] could fight the charges . . . at trial, [he] would not have taken the plea and would have instead gone to trial." Defendant stated he was made "to feel as though [he] had no rights and had no choice except to take the plea."
PCR counsel advanced additional arguments in his brief. He argued, for example, that the charges resulted from the execution of a search warrant at defendant's mother's home, there was no nexus between the gun found and the CDS found and the heroin found was consistent with personal use. PCR counsel argued plea counsel provided ineffective assistance by not filing a motion to dismiss the indictment and otherwise failing to "investigate the meritorious defenses available[.]"
The PCR judge, who had accepted defendant's guilty plea and imposed sentence, considered oral argument on the petition. The judge noted that defendant would have faced significantly more jail time had he been convicted at trial. Citing the transcript from the plea allocution, the judge stated he had explained to defendant that "he couldn't get a lower sentence" on the certain persons offense, and that "defendant said . . . he understood."
The judge rejected any IAC claim based upon plea counsel's failure to investigate, finding "[t]here's no showing of what the investigation should have been, what it would have disclosed, and how it would have made a difference." The judge also found no meritorious basis for the filing of pre-trial motions. He entered the February 18, 2014 order denying defendant's PCR petition, and this appeal ensued.
Before us, defendant argues that he was entitled to an evidentiary hearing on the petition because plea counsel "fail[ed] to explain . . . to [defendant] his sentence exposure making his plea void." He also contends that PCR counsel rendered ineffective assistance. We conclude these arguments lack sufficient merit to warrant extensive discussion in a written opinion and affirm. R. 2:11-3(e)(2). We add only the following brief comments.
To establish an IAC claim, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52).
A defendant is entitled to an evidentiary hearing on IAC claims only "upon the establishment of a prima facie case in support of post-conviction relief[.]" R. 3:22-10(b). A "prima facie case" requires a defendant "demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits," ibid., and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013).
Here, the plea forms demonstrate that defendant was fully aware of his sentence exposure and the likely sentence he faced. The plea allocution transcript reveals defendant swore under oath that he understood the terms of the plea agreement. Simply put, there is not a scintilla of factual support to the contrary.
Defendant argues that PCR counsel failed to provide the judge with "enough information . . . for a thorough analysis of the facts" regarding the gun and any nexus to the CDS recovered.
Without saying what they are, defendant contends the "record lack[ed] supporting details . . . and the [PCR] court was unable to adequately rule . . . ."
As the Court has made clear, "PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support." State v. Webster, 187 N.J. 254, 257 (2006). That is what PCR counsel did in this case.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION