Opinion
DOCKET NO. A-6217-11T1
05-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL THOMPSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Virginia Drick Messing, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-04-0271.
Joseph E. Krakora, Public Defender, attorney for appellant (Virginia Drick Messing, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael Thompson appeals from the April 17, 2012 order denying his petition for post-conviction relief (PCR), claiming the PCR court erroneously denied his request for an evidentiary hearing. For the reasons that follow, we affirm.
On July 14, 2004, a Mercer County Grand Jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(2) and 2C:2-6; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Co-defendant William Laster was also charged with the same offenses in the indictment.
On April 1, 2008, defendant was charged in an accusation with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1). Later that day, defendant pled guilty to aggravated manslaughter and, pursuant to the plea agreement, the State agreed to dismiss the indictment and recommend an eighteen-year term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant's factual basis was as follows. The victim, Timothy Walker, prompted two men to rob defendant and Laster. Defendant and Laster decided to kill the victim in retaliation for the robbery, and went to a parking lot where they expected to find Walker. When Walker appeared, Laster shot at him. Walker fell to the ground but was able to get up and run between two parked cars. Laster ran over to the victim and, because he had run out of ammunition, began to pistol-whip him. Defendant then gave Laster his .40 caliber handgun and said, "go ahead and handle it." Defendant admitted that when he gave Laster his gun, he knew Laster was going to shoot the victim. Laster then shot at the victim, at close range. Defendant and Laster then left the scene.
On September 9, 2008, consistent with the plea agreement, the trial court sentenced defendant to an eighteen-year term, subject to eighty-five percent parole ineligibility pursuant to the NERA. Before issuing the sentence, both defendant and his attorney addressed the court.
In an attempt to show Walker was not an innocent victim, the defense attorney noted Walker was engaged in a "drug turf battle" with defendant and Laster to gain control over drug trafficking in a particular area in Trenton. The attorney argued that had the victim not arranged to have defendant and Laster robbed, he might not have been killed, suggesting the victim caused his own death. The attorney also argued defendant deserved to be sentenced to less than eighteen years because he acknowledged responsibility for his actions. Finally, he noted defendant had four children to support.
When defendant addressed the court, he asked the court to take into consideration that he accepted responsibility for his actions and, further, had four children who needed a father figure in their lives.
The court observed that defendant was only thirty-two years of age yet had three "upper court" convictions, two of which were drug-related, and eleven arrests. The court found two aggravating factors applied: the risk that defendant would commit another offense, and the need for deterrence. See N.J.S.A. 2C:44-1a(3) and (9). The court considered but rejected mitigating factor eleven, N.J.S.A. 2C:44-1b(11), that incarceration would cause an excessive hardship to defendant's children, observing that the presentence report stated defendant owed over $14,000 in child support.
The trial court stated that even though there were no mitigating factors and that the maximum sentence for first-degree aggravated manslaughter was thirty years, he would nevertheless abide by the terms of the plea agreement, which he characterized as "more than fair to the defendant," and sentenced defendant to an eighteen-year prison term.
On November 16, 2010, an excessive sentence panel affirmed defendant's sentence. During oral argument defendant pointed out he received the same sentence as Laster. Defendant argued he should have received a lighter sentence, given he was not "the shooter who actually killed the [victim] and he wasn't the person who beat the victim." The panel found the sentence reasonable, the "most significant element of which" was the dismissal of the murder charge, his "significant" prior record, and the fact the sentence was in accordance with the plea agreement.
On March 2, 2011, defendant filed a PCR petition alleging errors on the part of the trial court and the ineffective assistance of plea counsel. After hearing argument, Judge Mark J. Fleming entered an order on April 17, 2012 denying defendant's PCR petition and rendered a comprehensive sixteen-page written opinion setting forth his findings and conclusions. On the claim defendant received ineffective assistance from plea counsel, Judge Fleming concluded defendant failed to assert a prima facie case under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and determined defendant was not entitled to an evidentiary hearing because he could not demonstrate a likelihood that his claim would succeed on the merits.
The issues defendant raised before the PCR court which he now raises on appeal are as follows. First, defendant contends that, although the factual basis for his plea was sufficient to sustain a plea for reckless manslaughter, it was insufficient to sustain one for aggravated manslaughter. He maintains plea counsel was ineffective for advising he plead to aggravated manslaughter, arguing counsel should have recommended he plead to reckless manslaughter instead, an offense which carries a maximum sentence of ten years.
Second, defendant argued plea counsel was ineffective for failing to argue at sentencing that the sentence be less than an eighteen-year term, because the following mitigating factors applied: three, N.J.S.A. 2C:44-1b(3) (defendant acted under a strong provocation); four, N.J.S.A. 2C:44-1b(4) (there were substantial grounds to excuse or justify defendant's conduct, though not a defense); five, N.J.S.A. 2C:44-1b(5) (the victim induced or facilitated the commission of the offense); nine, N.J.S.A. 2C:44-1b(9) (the character and attitude of the defendant indicate he is unlikely to commit another offense); eleven, N.J.S.A. 2C:44-1b(11) (incarceration would entail excessive hardship to defendant or his dependents); and twelve, N.J.S.A. 2C:44-1b(12) (defendant cooperated with law enforcement).
On appeal, defendant asserts the following point:
POINT I: IT WAS JUDICIAL ERROR TO DENY DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING
Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
This standard also applies in the context of guilty pleas, where the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012); State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012).
An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief and has demonstrated "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citing State v. Preciose, 129 N.J. 451, 463 (1992)). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We have considered defendant's arguments in light of the applicable law, and we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Fleming in his thorough and thoughtful April 17, 2012 written decision. We are satisfied from our review of the record defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his trial counsel's performance was deficient or that it resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Additionally, defendant has not shown that had his attorney advised him differently, which assumes the State would have been amenable to defendant pleading to reckless manslaughter, there was a reasonable probability that he would have refused to plead guilty and insisted on trial. See DiFrisco, supra, 137 N.J. at 457. Furthermore, defendant is not entitled to an evidentiary hearing as he has not demonstrated a reasonable likelihood of success on the merits. See Marshall, supra, 148 N.J. at 158.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION