NOT FOR PUBLICATION WITHOUT THE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-0847-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THEODORE L. LUCKEY,
Defendant-Appellant.
______________________________
Submitted February 28, 2017 – Decided August 7, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
09-08-1386.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Supervising Assistant Prosecutor, of counsel;
William Kyle Meighan, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant Theodore L. Luckey appeals the order denying his
petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
After being unexpectedly jilted by his lover, defendant
contacted a former boyfriend. They decided to go to Atlantic
City, stopping at a motel along the way. Defendant convinced his
former boyfriend to be bound and tied to the bed. It was then
defendant told him that he planned to kill himself. Defendant
left the former boyfriend tied to the bed and departed the motel.
Defendant drove around "aimlessly" looking for an abandoned
house that he could use to "sit in the garage and die," but his
car overheated. He picked a house at "random" and when an elderly
woman answered the front door, he pushed past her and entered the
home, where she and her elderly husband were making dinner.
Defendant admitted that he "frightened them." The husband asked
whether defendant wanted "credit cards, silver or money," but
defendant told them that he "just wanted to kill [himself]" and
then "broke down and told them everything" about the lover who
left him and why he wanted to commit suicide. The couple offered
defendant dinner but he declined. He allowed them to make their
dinner. He later took a frozen dinner and paid the couple for it.
It was the husband's birthday and he told defendant that one of
their children might call or come over. Defendant told the couple
2 A-0847-15T2
it would "not be good" if one of the children were to come over
to the house and he then pulled out the phone wires to prevent the
couple from communicating with anyone.
After a number of hours, defendant took the couple upstairs.
He removed the doorknobs from the doors so they could not get out.
At the top of the steps, he placed a mattress and a dresser "where
they couldn't get down." Defendant went to the garage, started
both his car and theirs. He returned to the house, wrote a suicide
note and opened the back door because of possible fumes. After
getting "juice and milk and stuff" for the elderly couple,
defendant returned to the garage, got in one of the cars and waited
to die.
The couple was still upstairs. Eventually, the eighty-seven-
year-old husband, who walked with a cane, was able to get around
the mattress and dresser and out of the house to summon help from
a neighbor. Defendant awoke in an ambulance.
At his guilty plea, defendant confirmed these facts in detail.
Relevant to the issue here, defendant stated:
Court: And then you say you took a
mattress and blockaded them in
with a dresser?
Defendant: Yes, Your Honor.
Court: And that was to keep them
upstairs?
3 A-0847-15T2
Defendant: Yes, Your Honor.
Court: And to keep them from leaving?
Defendant: Yes, Your Honor.
Defendant also testified about the purpose of his conduct
toward the couple.
Court: All right. And you recognize
that by confining the [couple]
upstairs and tearing out the
phone lines, unscrewing the
doorknobs and the comment that
you made with regard to if the
family member were to come over
that it wouldn't be good, that
these things had the effect of
terrorizing them. Do you
understand?
Defendant: Yes, Your Honor.
Court: And to the extent that you did
those things, it was your
purpose to terrorize them so
they wouldn't try to leave. Is
that fair to say?
The purpose of your conduct, by
telling them that it wouldn't
be good if a family member came
over and by tearing the phone
lines out --
Defendant: Yes, Your Honor.
Court: -- it was your purpose to put
them in a situation where they
were afraid to do anything but
stay there?
Defendant: Yes, Your Honor.
4 A-0847-15T2
Defendant pled guilty to third-degree criminal restraint
regarding the former boyfriend, N.J.S.A. 2C:13-2(a) (Count One);
two counts of first-degree kidnapping regarding the elderly
couple, N.J.S.A. 2C:13-1(b) (counts Four and Five); and fourth-
degree contempt, N.J.S.A. 2C:29-9(a) (Count Three). He was
sentenced to fifteen years in custody with an eighty-five percent
period of parole ineligibility for the first-degree kidnapping
charges, four years on count one and twelve months on count three,
all of which were to be served concurrently, for an aggregate
sentence of fifteen years.
Defendant appealed his sentence as excessive and also
contended that the factual basis taken during his plea was not
adequate to support a conviction for first-degree kidnapping. We
affirmed his sentence, but remanded to correct an error in the
judgment of conviction unrelated to this appeal. State v. Luckey,
No. A-5465-11 (App. Div. Oct. 16, 2012). Defendant's petition for
certification was denied. State v. Luckey, 213 N.J. 536 (2013).
Defendant filed a pro se petition for post-conviction relief
(PCR), contending the facts did not warrant a conviction for first-
degree kidnapping, that he was "forced" to take a fifteen-year
sentence he "did not agree with" and claiming "malicious
prosecution." The PCR petition was denied without prejudice.
Defendant filed another pro se PCR petition, alleging
5 A-0847-15T2
ineffective assistance of counsel for "failing to adequately
investigate and prepare a diminished capacity defense" and for not
advising defendant "the State could not have convicted [him] of
first-degree kidnapping." His PCR counsel alleged that by
negotiating and permitting defendant to plead guilty to first-
degree kidnapping, his counsel erred because the facts did not
support that offense.
The PCR court denied defendant's petition by order dated
August 3, 2015, finding in a written opinion that plea counsel was
not ineffective "[b]ecause a motion to dismiss the indictment with
respect to the kidnapping charges would have been meritless."
Additionally, "[i]n light of the overwhelming evidence against
[defendant], and given his significant sentencing exposure, it
would not have been reasonable for him to decide to go to trial
rather than accept the plea."
Defendant presents the following issues for our consideration
in his appeal.
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF SINCE AN INSUFFICIENT FACTUAL BASIS WAS
ELICITED FROM THE DEFENDANT AT THE TIME HE
ENTERED HIS GUILTY PLEA TO TWO COUNTS OF FIRST
DEGREE KIDNAPPING.
6 A-0847-15T2
A. FACTUAL BACKGROUND
B. THE DEFENDANT DID NOT PROVIDE A SUFFICIENT
FACTUAL BASIS TO ESTABLISH THE REQUISITE
ELEMENTS OF FIRST DEGREE KIDNAPPING EMBODIED
IN COUNTS IV AND V OF THE INDICTMENT, AS A
RESULT OF WHICH THE TRIAL COURT ERRED IN
DENYING HIS PETITION FOR POST CONVICTION
RELIEF ON THAT BASIS.
We are not persuaded by these arguments and affirm. In order
to prevail on an ineffective assistance of counsel claim, defendant
must establish that: (l) counsel's performance was deficient; and
(2) the defect in performance prejudiced defendant's rights to a
fair trial such 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,
466 U.S. 668, 694, l04 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698
(1984); see State v. Fritz, l05 N.J. 42, 58 (l987) (adopting the
Strickland test). In the context of a plea bargain, the defendant
must show "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, 142
(2009) (alteration in original) (quoting State v. DiFrisco, 137
N.J. 434, 457 (1994)).
Defendant's appeal only addresses the first-degree kidnapping
charge. A person is guilty of kidnapping if, among other things,
he or she "unlawfully confines another for a substantial period,
7 A-0847-15T2
with . . . [the] purpose[] . . . [t]o inflict bodily injury on or
to terrorize the victim or another." N.J.S.A. 2C:13-1(b)(2).
Defendant contends that the factual basis taken when he pled
guilty did not support the purpose to "terrorize" element of the
offense. However, defendant testified that he knew his acts had
the effect of terrorizing the elderly couple and that his purpose
was to do so in order that they would not leave to summon help.
That his purpose to terrorize the couple was an intermediate goal
of his overall object to commit suicide does not negate the
applicability of the kidnapping statute to these facts. As such,
defendant's plea counsel did not err by allowing him to plead
guilty to first-degree kidnapping. Defendant also was facing an
aggregate sentence exposure of sixty-six years on all of the
charges. He has not contended he was prejudiced by the guilty
plea in light of these other charges.
Affirmed.
8 A-0847-15T2
STATE OF NEW JERSEY VS. THEODORE L. LUCKEY(09-08-1386, OCEAN COUNTY AND STATEWIDE)
Combined Opinion