STATE OF NEW JERSEY VS. TYRE S. MILLEDGE (07-12-1096, CUMBERLAND COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4798-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYRE S. MILLEDGE, a/k/a
TYREE MILLEDGE,
SHAMAR MILLEDGE,
and BIG-I,

     Defendant-Appellant.
__________________________

                    Submitted October 19, 2020 – Decided December 28, 2020

                    Before Judges Rothstadt and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 07-12-
                    1096.

                    John P. Morris, attorney for appellant (Karen A.
                    Lodeserto, on the brief).

                    Jennifer    Webb-McCrae,       Cumberland       County
                    Prosecutor, attorney for respondent (Andre R. Araujo,
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Tyre Milledge 1 appeals from a May 13, 2019 order denying his

petition for post-conviction relief (PCR) after an evidentiary hearing. Defendant

argues that his appellate counsel rendered ineffective assistance by failing to

challenge the trial court's denial of his motion to withdraw his guilty plea to

aggravated manslaughter.     After carefully reviewing the record, we reject

defendant's contention and affirm the order denying PCR.

                                       I.

      On June 23, 2007, defendant was riding as a passenger on a dirt bike

driven by co-defendant Donald Thomas when he fired a handgun at a home they

were riding past. Defendant had been instructed by a gang leader, co-defendant

Raheem Williams, to shoot Thomas "Moopy" Baker. The shot missed Moopy

but struck and killed Moopy's mother, Elizabeth Taylor. After learning that he

had failed to carry out Williams' order to execute Moopy, defendant fled to

Georgia because he knew Williams was "looking for [him]." Defendant was

eventually arrested in Georgia and sent back to New Jersey.




1
  The record reflects inconsistent spellings of defendant's name as either "Tyre"
or "Tyree."
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                                       2
      Defendant and his two co-defendants were indicted for multiple charges

including first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree

conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A.

2C:5-2(a)(1) and (2); possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-4(a).

      In December 2009, defendant pled guilty to the lesser charge of first-

degree aggravated manslaughter pursuant to a negotiated plea agreement in

which he agreed to testify against Williams. Thereafter defendant filed a motion

to withdraw his guilty plea. The trial court convened a hearing after which it

denied defendant's motion.

      The parties agreed that defendant's sentencing would be delayed so that

the State's case against Williams could proceed. In August 2014, defendant was

sentenced in accordance with the plea agreement to a twenty-year prison term

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

appealed from his sentence only, and an excessive sentence panel of our court

affirmed. See State v. Milledge, No. A-003099-14 (App. Div. June 22, 2015).

      In his subsequent PCR petition, defendant initially argued that his trial

counsel had been ineffective in failing to pursue a diminished capacity defense.

At oral argument, defendant additionally claimed that his appellate counsel


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rendered ineffective assistance by appealing only the sentence and by not

appealing the denial of his motion to withdraw his plea. The PCR judge ordered

an evidentiary hearing on whether defendant asked counsel to appeal the denial

of his motion to withdraw and whether defendant was competent to plead guilty.

The State filed a motion for reconsideration. Pursuant to a consent order, the

PCR judge dismissed the motion for reconsideration, held the previously ordered

evidentiary hearing in abeyance, and permitted the parties to file supplemental

briefs for additional oral argument.

      Defendant accordingly filed new submissions incorporating the two

ineffective assistance claims. At oral argument, defendant focused on appellate

counsel's failure to argue that the motion to withdraw the plea should have been

granted. The PCR judge then decided that an evidentiary hearing was needed to

determine why the "pool" attorney who was assigned by the Public Defender to

represent defendant on appeal chose only to challenge the sentence. At that

hearing, appellate counsel testified that the Public Defender's appellate intake

unit determined that the appeal would be limited to an excessive sentence

argument.

      The PCR judge found that the attorney in the Public Defender appellate

intake unit who screened the case would have seen from the case file that


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defendant had moved unsuccessfully to withdraw his guilty plea. After carefully

reviewing the transcript of the withdrawal motion hearing, the PCR judge

ultimately denied defendant's petition, reasoning that "the attorney at the Public

Defender’s Office who did the intake and prepared the notice of appeal could

have reasonably found the issue of withdrawing the plea to be without merit

based on the opinion given by [the trial court]."

      Defendant raises the following issue for our consideration:

      POINT I

      THE PCR [JUDGE] ERRED IN DENYING DEFENDANT'S PETITION
      FOR POST-CONVICTION RELIEF BECAUSE APPELLATE
      COUNSEL WAS INEFFECTIVE IN FAILING TO PROPERLY
      REVIEW MR. MILLEDGE'S FILE AND FIND THAT A NOTICE OF
      MOTION TO WITHDRAW HIS GUILTY PLEA HAD BEEN ARGUED,
      AND ERRONEOUSLY DENIED.
                                     II.

      We begin our analysis by recognizing that PCR is not a substitute for

direct appeal. R. 3:22-3. Rather, it serves the same function as a federal writ of

habeas corpus. State v. Preciose, 

129 N.J. 451

, 459 (1992). When petitioning

for PCR, a defendant must establish, by a preponderance of the credible

evidence, that he or she is entitled to the requested relief.

Ibid. The defendant must

allege and articulate specific facts that "provide the court with an adequate

basis on which to rest its decision." State v. Mitchell, 

126 N.J. 565

, 579 (1992).


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      Both the Sixth Amendment of the United States Constitution and Article

1, paragraph 10 of the State Constitution guarantee the right to effective

assistance of counsel at all stages of criminal proceedings.         Strickland v.

Washington, 

466 U.S. 668

, 686 (1984) (citing McMann v. Richardson, 

397 U.S. 759

, 771 n.14 (1970)); State v. Fritz, 

105 N.J. 42

, 58 (1987). To establish a

violation of the right to the effective assistance of counsel, a defendant must

meet the two-part test articulated in Strickland. 

Fritz, 105 N.J. at 58

. "First, the

defendant must show that counsel's performance was deficient[.] Second, the

defendant must show that the deficient performance prejudiced the defense."

Strickland, 466 U.S. at 687

.

      To meet the first prong of the Strickland test, a defendant must show "that

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed by the Sixth Amendment."

Ibid. Reviewing courts indulge

in a

"strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance."

Id. at 689.

Furthermore, in determining

whether defense counsel's representation was deficient, "'[j]udicial scrutiny . . .

must be highly deferential,' and must avoid viewing the performance under the

'distorting effects of hindsight.'"   State v. Norman, 

151 N.J. 5

, 37 (1997)

(quoting 

Strickland, 466 U.S. at 689

).


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       The second Strickland prong is also demanding. "[T]he error committed

must be so serious as to undermine the court's confidence in the jury's verdict or

the result reached."    State v. Allegro, 

193 N.J. 352

, 367 (2008) (quoting

Castagna, 187 N.J. at 315

).        Counsel's errors must create a "reasonable

probability" that the outcome of the proceedings would have been different than

if counsel had not made the errors. 

Strickland, 466 U.S. at 694

.

      The Strickland/Fritz two-pronged standard also applies to claims of

ineffective assistance of appellate counsel. State v. Morrison, 

215 N.J. Super. 540

, 547 (App. Div. 1987). The hallmark of effective appellate advocacy is the

ability to "winnow[] out weaker arguments on appeal and focus[] on one central

issue if possible, or at most, on a few key issues." Jones v. Barnes, 

463 U.S. 745

, 751–52 (1983). Importantly for purposes of this appeal, it is well-settled

that failure to pursue a meritless claim does not constitute ineffective assistance.

State v. Webster, 

187 N.J. 254

, 256 (2006). Appellate counsel does not have an

obligation to raise spurious issues on appeal.

Ibid. III.

      We next apply these general principles to the decision made by the Public

Defender's intake unit to appeal only the sentence and not the denial of




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defendant's motion to withdraw his guilty plea. 2 At the motion to withdraw the

guilty plea, defense counsel argued that defendant did not understand what he

was agreeing to because of intellectual disabilities. The State argued defendant

only wanted to withdraw his plea because he had second thoughts about

testifying against Williams.

       Defense counsel at the motion hearing relied on a 2011 psychiatric

evaluation conducted by Dr. Kenneth J. Weiss, who opined that defendant was

severely intellectually challenged. According to Dr. Weiss, defendant could not

have knowingly and voluntarily entered into a plea agreement.

       The State countered with an earlier psychological evaluation obtained

through discovery that indicated that defendant suffered from only a mild

intellectual disability.

       The State also introduced correspondence between defendant, Williams,

Obadiah Taylor,3 and a county jail inmate named Kenneth Ransome. These


2
  We believe the screening of cases by the Public Defender appellate intake unit
is an integral part of the professional assistance provided to a convicted indigent
defendant. We therefore address whether, under the first Strickland prong, it
was ineffective assistance on the part of the intake unit not to assign pool counsel
to address the plea withdrawal issue. We also consider whether, under the
second Strickland prong, the result would have been different if that issue had
been raised on direct appeal.
3
    Obadiah Taylor provided defendant the gun that was used in the homicide.
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letters evinced a scheme to fabricate a basis for withdrawing defendant's guilty

plea, ostensibly for the benefit of Williams. A letter from Taylor to defendant,

for example, encouraged defendant to endorse a draft "affidavit of truth"

claiming defendant made false statements against Taylor and Williams. Another

letter sent by defendant to Williams stated that defendant was "100%" and

mentioned the affidavit Taylor drafted for him. A letter from Ransome to

Williams articulated hypothetical arguments that would allow defendant to

withdraw his plea agreement. We note that none of those fabricated arguments

suggest that defendant lacked the mental capacity to understand the terms and

consequences of the plea agreement.

      In rendering his decision to deny defendant's motion, the trial judge

emphasized the steps taken to ensure that defendant understood the terms and

consequences of pleading guilty to aggravated manslaughter. The judge also

noted that prior to the motion to withdraw, defense counsel never indicated "that

there was any difficulty with the defendant understanding what was happening

or what the consequences were or what his agreement was in regard to the

matter."




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      The trial judge then applied the four-factor test articulated in State v.

Slater, carefully analyzing each factor. 4 The trial judge found that defendant

made no colorable claim as to his innocence. The trial judge also highlighted

the jail correspondence, noting those letters "seriously call[ed] into question the

validity of the defendant’s claim that he did not understand the repercussions of

his guilty plea." As to the third Slater factor, the trial judge noted that the guilty

plea had been entered pursuant to a negotiated agreement that allowed defendant

to avoid the mandatory sentence for murder in exchange for his cooperation and

testimony against the gang leader who ordered an execution. Finally, the trial

judge found that the State would be greatly prejudiced by withdrawal of the plea,

insofar as it would have to gather and present evidence from other crimes that

occurred in 2007—that is, five years prior to the withdrawal hearing.

      We agree with the PCR court that the trial judge's reasoning was thorough

and detailed. We thus conclude the decision not to appeal the denial of the plea

withdrawal motion falls well "within the wide range of reasonable professional

assistance." 

Strickland, 466 U.S. at 689

. Neither the Public Defender's Office


4
  The four Slater factors are: "(1) whether the defendant has asserted a colorable
claim of innocence; (2) the nature and strength of defendant's reasons for
withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair advantage to the accused."

198 N.J. 145

, 157–58 (2009).
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nor the pool attorney it assigned to handle the appeal was required to raise a

meritless argument. See State v. Gaither, 

396 N.J. Super. 508

, 515–16 (holding

that unlike PCR counsel, a defendant's appellate counsel is not bound to

advocate claims that they deem to be without merit) (citing Jones v. Barnes, 

463 U.S. 745

, 753–54 (1983)). Cf. 

Webster, 187 N.J. at 258

("If after investigation

[PCR] counsel can formulate no fair legal argument in support of a particular

claim raised by defendant, no argument need be made on that point."). Even

had defendant raised the plea withdrawal on direct appeal, we see no reasonable

probability that the trial court's well-reasoned decision would have been

reversed. See 

Strickland, 466 U.S. at 694

. Defendant has thus failed to establish

either prong of the Strickland/Fritz test.

      Affirmed.




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