STATE OF NEW JERSEY VS. DENNIS THIGPEN, JR.(10-07-1359, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2940-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL STOVALL,

Defendant-Appellant.
_________________________________________

Submitted October 25, 2016 – Decided February 23, 2017

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 07-09-0125.

Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Keri-
Leigh Schaefer, Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Defendant Darnell Stovall appeals from the January 6, 2015

Law Division order denying his petition for post-conviction

relief (PCR), raising three points:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED AND THE MATTER REMANDED FOR
AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE
A PRIMA FACIE SHOWING OF INEFFECTIVE
ASSISTANCE OF COUNSEL.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE IT VIOLATED
DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.

POINT III

THE PCR COURT ERRED IN DENYING DEFENDANT'S
POST-CONVICTION RELIEF MOTION TO SET ASIDE HIS
GUILTY PLEA PURSUANT TO STATE V. SLATER.[1]

We have considered these arguments in light of the record and

applicable law and we affirm.

On December 14, 2006, defendant and two others, Quemere

McClendon and Paul Lewis, were driven to the home of Keith

Mason, intending to rob Mason of marijuana. McClendon was

carrying a loaded handgun. Defendant also had a handgun, but

claimed it was not loaded.

1
198 N.J. 145 (2009).

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 McClendon entered Mason's home first, followed by defendant

and Lewis. Mason's two-year-old son was in the home when the

three entered. Mason and McClendon began "tussling" and

McClendon shot Mason in the chest, killing him. The three fled,

leaving Mason's son alone with his father's body.

A grand jury sitting in Monmouth County, returned an

indictment charging defendant with first-degree felony murder,

(count fourteen); first-degree murder, (count fifteen); first-

degree armed robbery, (count thirteen); second-degree conspiracy

to commit armed burglary and armed robbery, (count ten); second-

degree possession of a firearm for an unlawful purpose, (count

eleven); second-degree burglary, (count twelve); and third-

degree endangering the welfare of a child, (count sixteen).

On March 19, 2009, defendant appeared before Judge Anthony

J. Mellaci, Jr., and pled guilty to counts ten, eleven, twelve,

thirteen, and sixteen pursuant to a negotiated plea agreement

which required defendant to cooperate and testify truthfully in

the trial of his co-defendants. In return, the State agreed to

dismiss the two murder counts and recommend an eighteen-year

sentence on the armed robbery count.

Before defendant was sentenced, Judge Mellaci vacated

defendant's guilty plea for failing to comply with provisions of

his plea agreement. On May 2, 2011, a grand jury returned an

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indictment charging defendant with first-degree witness

tampering.

On May 12, 2011, defendant appeared before Judge Mellaci

and pled guilty pursuant to a revised plea agreement to counts

ten (robbery conspiracy), fourteen (amended from felony murder

to aggravated manslaughter), and sixteen (endangering). The

State agreed to dismiss the remaining charges, including the

witness tampering indictment and recommended a twenty-two year

sentence subject to the Graves Act, N.J.S.A. 2C:43-6(c), and the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

After Judge Mellaci sentenced defendant in accordance with

the revised plea agreement, defendant appealed his sentence.

We heard the appeal at our Excessive Sentence Oral Argument

panel and affirmed defendant's sentence.

Defendant filed a pro se PCR petition. Counsel was

assigned and filed a memorandum of law in support of the

petition. Judge Mellaci heard oral argument on January 6, 2015,

and denied the petition without a hearing.

Defendant now claims, as he did before Judge Mellaci, that

plea counsel was ineffective for failing to inform him that his

sentence would be subject to the Graves Act or NERA, and he

should be allowed to withdraw his guilty plea and proceed to

trial.

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 Judge Mellaci rejected defendant's claim that his plea

counsel was ineffective for not spending enough time with him,

noting that the same attorney represented defendant for almost

four years, from his first arraignment in November 2007, through

his first guilty plea in March 2009, for his second guilty plea

in May 2011, and for his sentence in August 2011. During this

time, counsel met with defendant on "multiple occasions in an

attempt to resolve this matter."

Judge Mellaci read from the transcript of defendant's first

guilty plea where defendant acknowledged that plea counsel

explained the charges, the plea proceedings, and defendant

understood them and was satisfied with counsel's representation.

Judge Mellaci specifically explained to defendant that his

sentence may be subject to NERA and the Graves Act.

Judge Mellaci then read from the transcript of defendant's

second guilty plea, including defendant's acknowledgement that

he understood the implications of the Graves Act and NERA on his

sentence:

THE COURT: So, you understand that normally
on a second degree conspiracy such as this, I
could put you in jail for up to ten years and
order up to five years minimum parole
ineligibility. Do you understand?

DEFENDANT: Yes.

5 A-2940-14T3
 THE COURT: In addition, because this is a
conspiracy to commit an armed robbery and/or
burglary, you're subject to the No Early
Release Act, where you would have to serve
. . . 85 percent of your maximum sentence. Do
you understand?

DEFENDANT: Yes.

THE COURT: So, you would have to serve minimum
approximately of eight years, six months and
two days. Do you understand that?

DEFENDANT: Yes.

THE COURT: On Count 14 as amended to
aggravated manslaughter, do you understand
you're exposed to up to 30 years in jail, where
. . . you would would have to do up to half
that time as minimum parole ineligibility
under the Graves Act? Do you understand that?

DEFENDANT: Yes.

THE COURT: And under the No Early Release
Act, you would have to serve 85 percent of
that time. Do you understand that?

DEFENDANT: Yes.

THE COURT: So, if I were to give you a 30-
year sentence and we figure in 85 percent,
your exposure would be approximately 25 years,
six months and two days. Do you understand
that?

DEFENDANT: Yes.

To prevail on a claim of ineffective assistance of counsel,

defendant must satisfy the two-part test established by the

Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme

6 A-2940-14T3
Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must

show that his attorney's performance was deficient, and that the

deficient performance prejudiced his defense. Strickland, supra,

466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There

is a "'strong presumption' that [defense] counsel exercised

'reasonable professional judgment' and 'sound trial strategy' in

fulfilling his [or her] responsibilities." State v. Hess, 207

N.J. 123, 147 (2011) (citing Strickland, supra, 466 U.S. at 689-

90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95).

We review a judge's decision to deny a PCR petition without

an evidentiary hearing for abuse of discretion. State v.

Preciose, 129 N.J. 451, 462 (1992). An evidentiary hearing is

required only when a defendant establishes a prima facie case in

support of PCR, the court determines that there are disputed

issues of material fact that cannot be resolved by review of the

existing record, and the court determines that an evidentiary

hearing is required to resolve the claims asserted. R. 3:22-

10(b). A prima facie case is established when a defendant

demonstrates "a reasonable likelihood that his or her claim,

viewing the facts alleged in the light most favorable to the

defendant, will ultimately succeed on the merits." Ibid.

The transcript of defendant's plea allocution completely

contradicts defendant's claim that he did not understand his

7 A-2940-14T3
sentence because plea counsel failed to explain the Graves Act

or NERA. Defendant has not satisfied either prong of

Strickland, and Judge Mellaci correctly denied his petition

without a hearing.

Defendant's argument that Judge Mellaci erred in denying

his motion to withdraw his guilty plea lacks sufficient merit to

warrant further discussion in our opinion, Rule 2:11-3(e)(2),

and we affirm substantially for the reasons stated in Judge

Mellaci's comprehensive oral decision.

Affirmed.

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