STATE OF NEW JERSEY VS. J.Y.D (12-05-1124, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3673-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.Y.D.,1
Defendant-Appellant.
_______________________
Submitted March 10, 2021 – Decided April 7, 2021
Before Judges Whipple, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 12-05-1124.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Melinda A. Harrigan, Assistant
Prosecutor, of counsel and on the brief).
1
We use initials to protect the identity of the victim, Rule 1:38-3(c)(12), and
the juvenile co-defendant, Rule 1:38-3(d)(5).
PER CURIAM
Defendant J.Y.D. appeals from a January 16, 2020 order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. On
appeal, he argues:
AS DEFENDANT PRESENTED A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF
COUNSEL AND THERE WERE GENUINE ISSUES
OF MATERIAL FACT IN DISPUTE, THE PCR
COURT ERRED WHEN IT DENIED HIS PETITION
WITHOUT FIRST HOLDING AN EVIDENTIARY
HEARING.
We have considered this argument in light of the record and applicable legal
standards and affirm.
Previously, we related the facts in detail in our affirmance of defendant's
conviction on direct appeal. State v. J.Y.D., No. A-3221-14 (App. Div. Nov. 9,
2017). Defendant's petition for certification to our Supreme Court was denied.
State v. J.Y.D., 233 N.J. 213 (2018). We summarize the relevant facts here.
I.
On June 16, 2010, defendant, who was then fifteen years old, and an
accomplice, R.J., jumped into the car of a twenty-four-year-old mother. R.J.
pointed a gun at her saying, "[i]f you want to live you'll do as I say." After
moving the car to a discreet location, the victim was unable to turn over any
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money as demanded by defendants. She offered her bank card, cell phone, and
her car. Defendants took the victim's cell phone but declined to take her bank
card and car.
After being ordered to move her car to a darker location, R.J. handed the
gun to defendant, who continued to point it at the victim's head and demanded
she strip and to get on top of him. Defendants forced the victim to have vaginal
intercourse with R.J. and perform oral sex on defendant simultaneously. Both
defendants ejaculated into her, and she spit defendant's semen onto her
sweatshirt. After they "clapped each other up" and laughed, defendant and R.J.
walked away after the victim promised not to notify the police. Instead, the
victim immediately drove to the Detective Bureau and reported two males
sexually assaulted her. She was transported by ambulance to the hospital.
A confidential informant assisted in identifying defendant and R.J. The
victim identified defendant as the one who pointed the gun at her head and
forced her to perform oral sex on him while R.J. was sexually assaulting her.
Defendants were arrested and charged with various acts of delinquency, if
committed by an adult would constitute crimes.
After waiver to adult court, on November 22, 2013, defendant pled guilty
pursuant to a plea agreement to first-degree robbery, N.J.S.A. 2C:15-1, and
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second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). Pursuant to the plea
agreement, the State recommended an aggregate sentence of eighteen years '
imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, which included a ten-year sentence for the first-degree robbery charge and
an eight-year consecutive sentence for the second-degree sexual assault charge.
On November 14, 2014, defendant was sentenced to an aggregate
eighteen-year term of imprisonment subject to NERA. He was also subject to
mandatory parole supervision for life, N.J.S.A. 2C:43-6.4, and Megan's Law
requirements, N.J.S.A. 2C:7-1 to -19.
We affirmed on direct appeal, rejecting defendant's claims of t rial error
relating to his waiver from the Family Part to the Law Division based on the
probability of rehabilitation prior to the age of nineteen substantially
outweighing the reasons for the waiver, failing to conduct a Yarbough 2 analysis
before imposing consecutive sentences, not considering defendant's age, and not
properly weighing the aggravating and mitigating factors. As to defendant's
argument on direct appeal that his trial counsel was ineffective resulting in
prejudice to him, we noted this claim should be addressed in a separate PCR
appeal, citing State v. Preciose, 129 N.J. 451, 459-60 (1992).
2
State v. Yarbough, 100 N.J. 627 (1985).
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On January 4, 2019, defendant filed a pro se petition for PCR alleging
ineffective assistance of counsel. PCR counsel was assigned and asserted the
following claims of ineffectiveness: (1) failure to argue mitigating factors eight ,
N.J.S.A. 2C:44-1(a)(8), and nine, N.J.S.A. 2C:44-1(a)(9), while supplementing
the record when the sentencing court articulated mitigating factor seven ,
N.J.S.A. 2C:44-1(b)(7); (2) failure to argue against consecutive sentences under
Yarbough; and (3) failure to present any evidence of defendant's rehabilitation
during his pre-sentencing incarceration. PCR counsel contended that mitigating
factor eight applies because defendant's conduct "was a result of circumstances
unlikely to recur." Defendant's lack of a criminal history was not argued by his
trial counsel and therefore, not considered by the court. Mitigating factor nine,
defendant's character and attitude indicate that he is unlikely to commit another
offense, was not articulated by defense counsel notwithstanding the fact
defendant was a youthful offender and expressed remorse for his actions.
Defendant argues that if his defense counsel had "vigorously" argued
these facts, the sentencing court would "have changed the previously negotiated
plea agreement from consecutive to . . . [a] concurrent sentence." Further,
defendant contends his trial counsel failed to argue for concurrent sentences in
the face of "[b]oth crimes occur[ring] during a single period of aberrant
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behavior" in one location with only one victim. Additionally, defendant's pro
se PCR petition, incorporated into PCR counsel's brief, challenged the waiver
from the Family Part to the Law Division.
The PCR court heard oral argument on January 16, 2020, and denied the
petition on the record, noting defendant's claims were procedurally barred
"because a substantial equivalent of each claim ha[d] been adjudicated on the
merits on direct appeal." In its decision, the PCR court stated:
Defendant's claims with respect to his sentencing
counsel are both procedurally barred and they lack in
merit. On direct appeal, the Appellate Division
considered whether the [s]entencing [c]ourt failed to
properly weigh the [a]ggravating and [m]itigating
[f]actors and improperly sentence[d] [d]efendant
consecutively. And I refer to the Appellate Division
decision, [p]ages [nine] [and] [ten].
Now [d]efendant argues that his counsel failed to
argue [m]itigating [f]actors and failed to argue against
[the] consecutive sentence. Essentially what has
happened here is [d]efendant is repackaging his
argument that was presented to the Appellate Division.
The [s]entencing [c]ourt explained at length why it was
finding [a]ggravating [f]actor [three], the risk of re-
offending. The [s]entencing [c]ourt could not find
[a]ggravating [f]actor [three] together with [m]itigating
[f]actors [eight] and [nine], without contradicting itself.
The [c]ourt's explanation as to [a]ggravating [f]actor
[three] simply did not occasion an argument from
counsel on [f]actors [eight] and [nine].
In addition, the PCR court found:
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Even if this [c]ourt did find that counsel erred by
not arguing those factors, [d]efendant does not show—
and this is the second prong—that but for counsel's
alleged errors, he would not have pleaded guilty and
insisted on going to trial. The [c]ourt reminds for the
record that the [d]efendant—the [c]ourt is reminded
that the [d]efendant was facing an [eighteen]-count
indictment. The charges which [d]efendant pled guilty
to alone could have resulted in a [thirty]-year prison
sentence. Instead, [d]efendant received [eighteen]
years subject to NERA, which was a favorable sentence
under the circumstances negotiated by his counsel.
A memorializing order was entered, and defendant subsequently filed this
appeal.
II.
Under the Sixth Amendment of the United States Constitution, a person
accused of crimes is guaranteed the effective assistance of legal counsel in his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a
deprivation of that right, a convicted defendant must satisfy the two-part test
enunciated in Strickland by demonstrating: (1) counsel's performance was
deficient, and (2) the deficient performance actually prejudiced the accused's
defense. Id. at 687; State v. Fritz, 105 N.J. 42, 52 (1987).
In reviewing such claims, courts apply a strong presumption that defense
counsel "rendered adequate assistance and . . . professional judgment."
Strickland, 466 U.S. at 690. "[C]omplaints merely of matters of trial strategy
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will not serve to ground a constitutional claim of inadequacy[.]" Fritz, 105 N.J.
at 54 (citation omitted); see also State v. Echols, 199 N.J. 344, 357-59 (2009).
"The quality of counsel's performance cannot be fairly assessed by focusing on
a handful of issues while ignoring the totality of counsel's performance in the
context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J.
293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991)). "As a general
rule, strategic miscalculations or trial mistakes are insufficient to warrant
reversal 'except in those rare instances where they are of such magnitude as to
thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (alteration in
original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
The trial court has the discretion to conduct an evidentiary hearing.
Preciose, 129 N.J. at 462; R. 3:22-10. In order to obtain an evidentiary hearing
on a PCR application based upon an ineffective assistance claim, defendant must
make a prima facie showing of deficient performance and actual prejudice. Id.
at 462-63. "When determining the propriety of conducting an evidentiary
hearing, the PCR court should view the facts in the light most favorable to the
defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citation omitted); see also
Preciose, 129 N.J. at 462-63.
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However, "bald assertions" of deficient performance are simply
insufficient. State v. Porter, 216 N.J. 343, 355 (2013) (citing State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999)). Rather, defendant must
demonstrate a reasonable likelihood of success on the merits. R. 3:22-10(b).
Where a judge denies a PCR petition without an evidentiary hearing, we
review the denial for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997));
R. 3:22-10. Further, where no evidentiary hearing was conducted, "we may
review the factual inferences the court has drawn from the documentary record
de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). We also
review de novo the PCR court's conclusions of law. Ibid. (citation omitted).
Here, we note from the onset that on direct appeal, we only considered
whether the sentencing court failed to conduct a Yarbough analysis; consider
defendant's youth; and weigh the aggravating and mitigating factors. Saliently,
we did not consider whether defense counsel was ineffective in not presenting
these arguments. Therefore, we part company with the PCR court and conclude
that defendant's ineffective assistance of counsel claim is not procedurally
barred under Rule 3:22-5. See State v. McQuaid, 147 N.J. 464, 484 (1997)
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(recognizing "claims that differ from those asserted below will be heard on
PCR").
On direct appeal, we stated "the sentencing court did not expressly explain
why it imposed consecutive sentences" but concluded that defendant had "not
shown the sentencing court was 'clearly mistaken,'" and affirmed his sentence.
Moreover, we underscored "[t]he attendant 'facts and circumstances leave little
doubt' about the sentence imposed[,]" citing State v. Jang, 359 N.J. Super. 85,
97-98 (App. Div. 2003).
Our de novo review of the record convinces us the ineffective assistance
of counsel claim was properly before the PCR court for adjudication and was
not barred under Rule 3:22-5. However, even assuming defendant satisfied the
first prong of the Strickland/Fritz analysis, we agree with the PCR court that he
failed to show that any deficient performance prejudiced his defense under the
second prong. See Marshall, 148 N.J. at 89, 157 (citations omitted).
A defendant will be prejudiced when counsel's errors are sufficiently
serious to deny him a fair trial. Ibid. The prejudice standard is met if there is a
"reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Ibid. A reasonable probability
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simply means a probability sufficient to undermine confidence in the outcome
of the proceeding. State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).
To set aside a guilty plea on an ineffective assistance of counsel theory,
"a defendant must show that (i) counsel's assistance was not 'within the range of
competence demanded of attorneys in criminal cases'; and (ii) 'that there is a
reasonable probability that, but for counsel's errors, [the defendant] would not
have pled guilty and would have insisted on going to trial.'" State v. Nunez-
Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)).
Given the PCR court's statement that an argument by defendant's trial
counsel regarding mitigating factors would not have persuaded the sentencing
court to impose a lower sentence than contemplated in the negotiated plea
agreement, defendant has failed to make a prima facie showing of the second
Strickland prong. Moreover, defendant's argument with respect to the effect
mitigating factors may have had on his sentence is merely a bald assertion and
calls for speculation. Hence, we discern no abuse of discretion in the PCR court
denying an evidentiary hearing.
Defendant's other arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
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Affirmed.
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