STATE OF NEW JERSEY VS. TYHEED JEFFERSON (06-04-1204, 06-09-2896, 07-02-0450, 07-08-2889, AND 07-12-3947, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1399-19T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYHEED JEFFERSON,
Defendant-Appellant.
__________________________
Submitted December 15, 2020 – Decided February 2, 2021
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 06-04-1204,
06-09-2896, 07-02-0450, 07-08-2889 and 07-12-3947.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Tyheed Jefferson appeals from an October 17, 2019 order
denying his petition for post-conviction relief (PCR). We affirm because the
petition was time-barred under Rule 3:22-12(a)(1) and otherwise lacked merit.
In 2006 and 2007, defendant was charged under five indictments with
multiple drug-related crimes and terroristic threats. In February 2008, defendant
pled guilty to four crimes under four separate indictments. Specifically, he pled
guilty to three counts of third-degree distribution of cocaine and heroin within
1,000 feet of school property, N.J.S.A. 2C:35-7, and third-degree terroristic
threats, N.J.S.A. 2C:12-3(a). During his plea hearing, defendant was
represented by two attorneys from different firms. Under the plea agreements,
the State agreed to recommend an aggregate sentence of six years in prison with
thirty-six months of parole ineligibility. The State also agreed to dismiss all
other charges, including the charges in the fifth indictment.
On July 2, 2008, defendant was sentenced. On the drug convictions, he
was sentenced to five years in prison with thirty-six months of parole
ineligibility. On the terroristic threat conviction, he was sentenced to three years
in prison. All sentences were run concurrent to each other. Defendant did not
file a direct appeal. In 2011, defendant was resentenced to time served because
he had kidney failure. He was then released from state prison.
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In February 2018, defendant filed a petition for PCR, alleging that the two
lawyers who represented him when he pled guilty had pressured him into
pleading guilty and had provided ineffective assistance of counsel. He
contended that both lawyers had failed to explain that he was pleading guilty to
four crimes and that he might face enhanced sentencing if he was convicted of
new crimes in the future. He also asserted that the lawyer representing him on
the terroristic threat charge failed to interview the alleged victim.
Judge Nancy Sivilli heard oral arguments concerning defendant's petition.
On October 17, 2019, Judge Sivilli issued a written opinion and order denying
the petition without an evidentiary hearing. Judge Sivilli found that defendant's
petition had been filed almost ten years after he was sentenced, and he had failed
to show either excusable neglect or that a fundamental injustice would result if
the petition was not considered. See R. 3:22-12(a)(1)(A); State v. Goodwin, 173
N.J. 583, 594 (2002); State v. Brown, 455 N.J. Super. 460, 470 (App. Div. 2018).
Judge Sivilli also addressed the merits of defendant's ineffective
assistance claims, rejecting each of defendant's contentions. She found that
defendant failed to establish the prongs required to show ineffective assistance.
See Strickland v. Washington, 466 U.S. 668, 687 (1984) (establishing a two-part
test: (1) "counsel made errors so serious that counsel was not functioning as the
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'counsel' guaranteed the defendant by the Sixth Amendment[,]" and (2) "the
deficient performance prejudiced the defense"); accord State v. Fritz, 105 N.J.
42, 58 (1987) (adopting the Strickland test).
In her thorough and well-reasoned opinion, Judge Sivilli found that the
record rebutted defendant's claim that he had been pressured into pleading
guilty. She pointed out that the judge taking his pleas had expressly asked
defendant if he was making a voluntary plea. Defendant told the judge he was.
Judge Sivilli also found that his argument about failing to interview a witness
lacked merit because no certification was submitted and hearsay from an
investigator offered ten years after the event had little probative value. Next,
Judge Sivilli found that defendant had been informed by his counsel and the
court that he was pleading guilty to four crimes and those crimes would be part
of his criminal record. Finally, Judge Sivilli found that defendant was not
entitled to an evidentiary hearing because he had failed to establish a prima facie
case of ineffective assistance of counsel and failed to provide certifications or
affidavits demonstrating prejudice. See State v. Porter, 216 N.J. 343, 353
(2013); R. 3:22-10(b).
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On this appeal, defendant argues that his petition should not be time barred
and that he has viable claims of ineffective assistance by his plea counsel. He
articulates those arguments as follows:
POINT I – DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF SHOULD NOT BE TIME
BARRED BECAUSE DEFENDANT'S DELAY IN
FILING WAS DUE TO EXCUSABLE NEGLECT
AND THE INTERESTS OF JUSTICE REQUIRE HIS
CLAIMS BE HEARD.
POINT II – DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
FOR COUNSEL'S FAILURE TO INTERVIEW
AVAILABLE WITNESSES, AND FOR FAILURE TO
EXPLAIN THE FUTURE RAMIFICATIONS OF
PLEADING TO MULTIPLE INDICTMENTS PRIOR
TO ACCEPTING A PLEA.
(A) APPLICABLE LAW
(B) DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE FOR COUNSEL'S FAILURE TO
INTERVIEW A WITNESS WHO HAD
EXCULPATORY TESTIMONY ON
DEFENDANT'S CHARGE OF TERRORISTIC
THREATS.
(C) DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE FOR COUNSEL'S FAILURE TO
INFORM HIS PLEA WOULD RESULT IN
MULTIPLE CONVICTIONS AS OPPOSED TO
ONE AND THE EFFECT THAT WOULD
HAVE ON ANY SUBSEQUENT
CONVICTION.
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Having conducted a de novo review, we reject these arguments. We
affirm essentially for the reasons explained by Judge Sivilli in her
comprehensive written opinion issued on October 17, 2019.
Affirmed.
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