STATE OF NEW JERSEY VS. TYRE S. MILLEDGE (07-12-1096, CUMBERLAND COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4798-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRE S. MILLEDGE, a/k/a
TYREE MILLEDGE,
SHAMAR MILLEDGE,
and BIG-I,
Defendant-Appellant.
__________________________
Submitted October 19, 2020 – Decided December 28, 2020
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 07-12-
1096.
John P. Morris, attorney for appellant (Karen A.
Lodeserto, on the brief).
Jennifer Webb-McCrae, Cumberland County
Prosecutor, attorney for respondent (Andre R. Araujo,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Tyre Milledge 1 appeals from a May 13, 2019 order denying his
petition for post-conviction relief (PCR) after an evidentiary hearing. Defendant
argues that his appellate counsel rendered ineffective assistance by failing to
challenge the trial court's denial of his motion to withdraw his guilty plea to
aggravated manslaughter. After carefully reviewing the record, we reject
defendant's contention and affirm the order denying PCR.
I.
On June 23, 2007, defendant was riding as a passenger on a dirt bike
driven by co-defendant Donald Thomas when he fired a handgun at a home they
were riding past. Defendant had been instructed by a gang leader, co-defendant
Raheem Williams, to shoot Thomas "Moopy" Baker. The shot missed Moopy
but struck and killed Moopy's mother, Elizabeth Taylor. After learning that he
had failed to carry out Williams' order to execute Moopy, defendant fled to
Georgia because he knew Williams was "looking for [him]." Defendant was
eventually arrested in Georgia and sent back to New Jersey.
1
The record reflects inconsistent spellings of defendant's name as either "Tyre"
or "Tyree."
A-4798-18T1
2
Defendant and his two co-defendants were indicted for multiple charges
including first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree
conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A.
2C:5-2(a)(1) and (2); possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-4(a).
In December 2009, defendant pled guilty to the lesser charge of first-
degree aggravated manslaughter pursuant to a negotiated plea agreement in
which he agreed to testify against Williams. Thereafter defendant filed a motion
to withdraw his guilty plea. The trial court convened a hearing after which it
denied defendant's motion.
The parties agreed that defendant's sentencing would be delayed so that
the State's case against Williams could proceed. In August 2014, defendant was
sentenced in accordance with the plea agreement to a twenty-year prison term
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant
appealed from his sentence only, and an excessive sentence panel of our court
affirmed. See State v. Milledge, No. A-003099-14 (App. Div. June 22, 2015).
In his subsequent PCR petition, defendant initially argued that his trial
counsel had been ineffective in failing to pursue a diminished capacity defense.
At oral argument, defendant additionally claimed that his appellate counsel
A-4798-18T1
3
rendered ineffective assistance by appealing only the sentence and by not
appealing the denial of his motion to withdraw his plea. The PCR judge ordered
an evidentiary hearing on whether defendant asked counsel to appeal the denial
of his motion to withdraw and whether defendant was competent to plead guilty.
The State filed a motion for reconsideration. Pursuant to a consent order, the
PCR judge dismissed the motion for reconsideration, held the previously ordered
evidentiary hearing in abeyance, and permitted the parties to file supplemental
briefs for additional oral argument.
Defendant accordingly filed new submissions incorporating the two
ineffective assistance claims. At oral argument, defendant focused on appellate
counsel's failure to argue that the motion to withdraw the plea should have been
granted. The PCR judge then decided that an evidentiary hearing was needed to
determine why the "pool" attorney who was assigned by the Public Defender to
represent defendant on appeal chose only to challenge the sentence. At that
hearing, appellate counsel testified that the Public Defender's appellate intake
unit determined that the appeal would be limited to an excessive sentence
argument.
The PCR judge found that the attorney in the Public Defender appellate
intake unit who screened the case would have seen from the case file that
A-4798-18T1
4
defendant had moved unsuccessfully to withdraw his guilty plea. After carefully
reviewing the transcript of the withdrawal motion hearing, the PCR judge
ultimately denied defendant's petition, reasoning that "the attorney at the Public
Defender’s Office who did the intake and prepared the notice of appeal could
have reasonably found the issue of withdrawing the plea to be without merit
based on the opinion given by [the trial court]."
Defendant raises the following issue for our consideration:
POINT I
THE PCR [JUDGE] ERRED IN DENYING DEFENDANT'S PETITION
FOR POST-CONVICTION RELIEF BECAUSE APPELLATE
COUNSEL WAS INEFFECTIVE IN FAILING TO PROPERLY
REVIEW MR. MILLEDGE'S FILE AND FIND THAT A NOTICE OF
MOTION TO WITHDRAW HIS GUILTY PLEA HAD BEEN ARGUED,
AND ERRONEOUSLY DENIED.
II.
We begin our analysis by recognizing that PCR is not a substitute for
direct appeal. R. 3:22-3. Rather, it serves the same function as a federal writ of
habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning
for PCR, a defendant must establish, by a preponderance of the credible
evidence, that he or she is entitled to the requested relief. Ibid. The defendant
must allege and articulate specific facts that "provide the court with an adequate
basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
A-4798-18T1
5
Both the Sixth Amendment of the United States Constitution and Article
1, paragraph 10 of the State Constitution guarantee the right to effective
assistance of counsel at all stages of criminal proceedings. Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a
violation of the right to the effective assistance of counsel, a defendant must
meet the two-part test articulated in Strickland. Fritz, 105 N.J. at 58. "First, the
defendant must show that counsel's performance was deficient[.] Second, the
defendant must show that the deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687.
To meet the first prong of the Strickland test, a defendant must show "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge in a
"strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689. Furthermore, in determining
whether defense counsel's representation was deficient, "'[j]udicial scrutiny . . .
must be highly deferential,' and must avoid viewing the performance under the
'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997)
(quoting Strickland, 466 U.S. at 689).
A-4798-18T1
6
The second Strickland prong is also demanding. "[T]he error committed
must be so serious as to undermine the court's confidence in the jury's verdict or
the result reached." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting
Castagna, 187 N.J. at 315). Counsel's errors must create a "reasonable
probability" that the outcome of the proceedings would have been different than
if counsel had not made the errors. Strickland, 466 U.S. at 694.
The Strickland/Fritz two-pronged standard also applies to claims of
ineffective assistance of appellate counsel. State v. Morrison, 215 N.J. Super.
540, 547 (App. Div. 1987). The hallmark of effective appellate advocacy is the
ability to "winnow[] out weaker arguments on appeal and focus[] on one central
issue if possible, or at most, on a few key issues." Jones v. Barnes, 463 U.S.
745, 751–52 (1983). Importantly for purposes of this appeal, it is well-settled
that failure to pursue a meritless claim does not constitute ineffective assistance.
State v. Webster, 187 N.J. 254, 256 (2006). Appellate counsel does not have an
obligation to raise spurious issues on appeal. Ibid.III.
We next apply these general principles to the decision made by the Public
Defender's intake unit to appeal only the sentence and not the denial of
A-4798-18T1
7
defendant's motion to withdraw his guilty plea. 2 At the motion to withdraw the
guilty plea, defense counsel argued that defendant did not understand what he
was agreeing to because of intellectual disabilities. The State argued defendant
only wanted to withdraw his plea because he had second thoughts about
testifying against Williams.
Defense counsel at the motion hearing relied on a 2011 psychiatric
evaluation conducted by Dr. Kenneth J. Weiss, who opined that defendant was
severely intellectually challenged. According to Dr. Weiss, defendant could not
have knowingly and voluntarily entered into a plea agreement.
The State countered with an earlier psychological evaluation obtained
through discovery that indicated that defendant suffered from only a mild
intellectual disability.
The State also introduced correspondence between defendant, Williams,
Obadiah Taylor,3 and a county jail inmate named Kenneth Ransome. These
2
We believe the screening of cases by the Public Defender appellate intake unit
is an integral part of the professional assistance provided to a convicted indigent
defendant. We therefore address whether, under the first Strickland prong, it
was ineffective assistance on the part of the intake unit not to assign pool counsel
to address the plea withdrawal issue. We also consider whether, under the
second Strickland prong, the result would have been different if that issue had
been raised on direct appeal.
3
Obadiah Taylor provided defendant the gun that was used in the homicide.
A-4798-18T1
8
letters evinced a scheme to fabricate a basis for withdrawing defendant's guilty
plea, ostensibly for the benefit of Williams. A letter from Taylor to defendant,
for example, encouraged defendant to endorse a draft "affidavit of truth"
claiming defendant made false statements against Taylor and Williams. Another
letter sent by defendant to Williams stated that defendant was "100%" and
mentioned the affidavit Taylor drafted for him. A letter from Ransome to
Williams articulated hypothetical arguments that would allow defendant to
withdraw his plea agreement. We note that none of those fabricated arguments
suggest that defendant lacked the mental capacity to understand the terms and
consequences of the plea agreement.
In rendering his decision to deny defendant's motion, the trial judge
emphasized the steps taken to ensure that defendant understood the terms and
consequences of pleading guilty to aggravated manslaughter. The judge also
noted that prior to the motion to withdraw, defense counsel never indicated "that
there was any difficulty with the defendant understanding what was happening
or what the consequences were or what his agreement was in regard to the
matter."
A-4798-18T1
9
The trial judge then applied the four-factor test articulated in State v.
Slater, carefully analyzing each factor. 4 The trial judge found that defendant
made no colorable claim as to his innocence. The trial judge also highlighted
the jail correspondence, noting those letters "seriously call[ed] into question the
validity of the defendant’s claim that he did not understand the repercussions of
his guilty plea." As to the third Slater factor, the trial judge noted that the guilty
plea had been entered pursuant to a negotiated agreement that allowed defendant
to avoid the mandatory sentence for murder in exchange for his cooperation and
testimony against the gang leader who ordered an execution. Finally, the trial
judge found that the State would be greatly prejudiced by withdrawal of the plea,
insofar as it would have to gather and present evidence from other crimes that
occurred in 2007—that is, five years prior to the withdrawal hearing.
We agree with the PCR court that the trial judge's reasoning was thorough
and detailed. We thus conclude the decision not to appeal the denial of the plea
withdrawal motion falls well "within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689. Neither the Public Defender's Office
4
The four Slater factors are: "(1) whether the defendant has asserted a colorable
claim of innocence; (2) the nature and strength of defendant's reasons for
withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair advantage to the accused."
198 N.J. 145, 157–58 (2009).
A-4798-18T1
10
nor the pool attorney it assigned to handle the appeal was required to raise a
meritless argument. See State v. Gaither, 396 N.J. Super. 508, 515–16 (holding
that unlike PCR counsel, a defendant's appellate counsel is not bound to
advocate claims that they deem to be without merit) (citing Jones v. Barnes, 463
U.S. 745, 753–54 (1983)). Cf. Webster, 187 N.J. at 258 ("If after investigation
[PCR] counsel can formulate no fair legal argument in support of a particular
claim raised by defendant, no argument need be made on that point."). Even
had defendant raised the plea withdrawal on direct appeal, we see no reasonable
probability that the trial court's well-reasoned decision would have been
reversed. See Strickland, 466 U.S. at 694. Defendant has thus failed to establish
either prong of the Strickland/Fritz test.
Affirmed.
A-4798-18T1
11