STATE OF NEW JERSEY v. SHARROD STUART

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHARROD STUART, Defendant-Appellant.

DOCKET NO. A-3072-08T4

Decided: February 11, 2010

Before Judges Graves and J.N. Harris. Yvonne Smith Segars, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Vered Adoni, Assistant Prosecutor, of counsel and on the brief).

In this appeal, we consider defendant's first application for post conviction relief (PCR).  He challenges the Opinion and Order dated October 10, 2008, issued by Judge Harry G. Carroll, which denied defendant relief.   We affirm substantially for the reasons stated in Judge Carroll's eighteen-page written opinion, and add only the following.

On May 19, 2003, defendant, almost twenty years of age and with only a tenth grade education, committed several crimes, including carjacking, pointing a firearm at another, unlawful possession of a handgun, possession of a handgun without a permit, and eluding a police officer.   Specifically, while in possession of a loaded handgun, defendant threatened the victim with immediate bodily injury and then took the victim's 1992 Mercury Grand Marquis from a ShopRite parking lot in Englewood.   In the immediate aftermath of the carjacking, defendant led the police on a high-speed chase along the Palisades Interstate Parkway, which ended when defendant's vehicle careened off the roadway into a wooded area and finally landed after overturning several times.

On August 20, 2003, defendant was charged in an indictment with first-degree carjacking, N.J.S.A. 2C:15-2;  fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4);  second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-4(a);  third-degree possession of a handgun without first having obtained a permit to carry the same, N.J.S.A. 2C:39-5(b);  and second degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b).  Almost one year later, on August 9, 2004, defendant entered a plea of guilty to all of the above charges contained in the indictment and provided a cursory factual basis for each crime.   In exchange for this plea, the State agreed to recommend a maximum sentence of ten years in custody subject to the eight-year and six-month period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On October 1, 2004, defendant was sentenced by Judge Joseph S. Conte--in conformity with the plea agreement's maximum recommendation--to an aggregate term of ten years incarceration.   Defendant did not pursue a direct appeal of his conviction or sentence.

It was not until almost three years later, on September 12, 2007, when defendant filed a pro se application for PCR. Counsel was assigned to represent defendant, the issues were briefed, and the matter proceeded, on October 10, 2008, to a hearing before Judge Carroll.   The court rejected all of defendant's arguments without conducting an evidentiary hearing.   This appeal followed.

On appeal defendant makes the following arguments:

POINT I:  THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

POINT II:  THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW SENTENC[ING] HEARING AS [A] RESULT OF TRIAL COUNSEL PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE AT THE SENTENCING HEARING.

POINT III:  THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We have measured these issues in light of the record, the applicable law, and the written arguments of counsel.   This court is confident that none of the issues is of sufficient merit to warrant extended discussion in a written opinion.   R. 2:11-3(e)(2).   We substantially subscribe to the views of Judge Carroll yet add the ensuing brief comments.

The lion's share of criticism on appeal is directed at Judge Conte's sentencing analysis, and the conduct of defendant's attorney during the sentencing hearing.   We note that our Supreme Court has recently fortified the authority of sentencing judges, State v. Bieniek, _ N.J. _ (2010), and has reminded our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing.   We grant to it the deference to which it is entitled under our traditional principles of

appellate review of a criminal sentence.

[Id. (slip op. at 13).]

Likewise in this case, we find that Judge Conte--succinct and to the point in first determining and then balancing aggravating factors three, six, and nine,1 against no mitigating factors--faithfully applied our State's sentencing policies and did not transgress the principles of State v. Roth, 95 N.J. 334 (1984) or its progeny.   Just as Judge Carroll was loathe to disturb that exercise of discretion, so too are we.

As for defendant's claim that he was forced to endure the ineffective assistance of counsel, we must disagree.   His attorney facilitated having defendant's father and aunt make positive oral statements to the sentencing judge.   Counsel spoke appropriately about defendant's unhappy youth, the hope for a better future, and highlighted the newly found remorseful attitude of the defendant.   She also noted, “he [defendant] was treated fairly and - - given quite a low sentence [recommendation] considering what it might be.”

The Law Division must grant a defendant an evidentiary hearing on a claim of ineffective assistance of counsel whenever a prima facie case has been established by a defendant.  State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997);  State v. Preciose, 129 N.J. 451, 462 (1992);  State v. Moore, 273 N.J.Super. 118, 126-27 (App.Div.), certif. denied, 137 N.J. 311 (1994).

To establish a case of ineffective assistance of counsel, a

defendant must satisfy the two prongs of the Strickland/Fritz 2 paradigm.   First, a defendant must show that counsel was actually deficient.   Second, he must show that there exists “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.

When evaluating whether a defendant has presented a prima facie case, the PCR judge “should view the facts in the light most favorable to a defendant.”   State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   If, under this two-part inquiry, the PCR judge determines that the defendant could possibly be entitled to relief, the defendant is entitled to an evidentiary hearing unless “the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.”   Marshall, supra, 148 N.J. at 158 (internal citations omitted).

In light of our conclusion that defendant's attorney adequately represented him at the sentencing proceeding, and that the sentence is legally unassailable, it is clear to us that Judge Carroll correctly determined that an evidentiary hearing was unnecessary, that defendant did not suffer the ineffective assistance of counsel, and that defendant was not entitled to post-conviction relief.

Affirmed.

FOOTNOTES

1.  FN1. N.J.S.A. 2C:44-1(a)(3);  -1(a)(6);  and -1(a)(9).

2.  FN2. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test for application in New Jersey).

PER CURIAM

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