                        NOT FOR PUBLICATION WITHOUT THE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.




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