March 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES BURGESS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 1977-10-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2007
Before Judges S.L. Reisner and Seltzer.
Defendant appeals from an October 12, 2005, order that denied his post-conviction relief (PCR) petition without an evidentiary hearing, and we affirm.
Defendant was originally charged in a twelve-count indictment arising from an incident occurring on or about May 30, 2000, in Newark. The charges included two counts of attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3; two counts of aggravated assault, N.J.S.A. 2C:12-1b(1); three counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(c); receiving stolen property, N.J.S.A. 2C:20-7; and eluding police, N.J.S.A. 2C:29-2(b).
On January 29, 2003, defendant pled guilty to an amended charge of second-degree assault and third-degree unlawful possession of a weapon, receiving a recommendation of a nine-year custodial term with an eighty-five percent parole disqualifier on the assault charge and a concurrent five-year term on the unlawful possession charge. The parole disqualifier was required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentence, imposed on April 3, 2003, was concurrent with a sentence defendant was then serving on an unrelated conviction.
The sentence was reviewed on the excess sentencing calendar and affirmed on January 7, 2004. Certification was denied. State v. Burgess, 180 N.J. 457 (2004). Defendant filed a PCR application on September 21, 2004, which was heard October 6, 2005, and an order denying relief was signed on October 12, 2005. On appeal from that order, defendant argues:
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S FAILURE TO INFORM HIM OF THE PENAL CONSEQUENCES OF HIS PLEA.
THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE OF TRIAL COUNSEL'S FAILURE TO ADEQUATELY INFORM THE DEFENDANT OF THE PENAL CONSEQUENCES OF HIS PLEA. POINT III
THE DEFENDANT DID NOT PRESENT FACTS AT HIS PLEA HEARING SUFFICIENT TO ESTABLISH THE CHARGE OF ASSAULT OF THE SUBSEQUENT APPLICATION OF THE NO EARLY RELEASE ACT TO HIS SENTENCE.
Defendant has also filed a pro se brief in which he advances these arguments:
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA AND SENTENCE PROCEEDINGS, IN VIOLATION OF THE NEW JERSEY CONSTITUTION AND THE UNITED STATES CONSTITUTION.
THE SENTENCE JUDGE ERRED BY CONSIDERING FACTS NOT PLED TO BY DEFENDANT, IN VIOLATION OF STATE v. NATALE, WHEREFORE, THE MATTER MUST BE REMANDED.
Our review of the record convinces us that there is no basis for disturbing the decision to deny the petition. We begin by dealing with the claim that defendant did not provide a sufficient factual basis for the plea.
A defendant may not enter a plea of guilty to a charge unless a judge determines that there is a factual basis for the plea. R. 3:9-2. Defendant asserts that there was no such basis for his plea. We note that defendant has failed to explain why this claim could not have been presented on direct appeal. In the absence of any such explanation, the argument is foreclosed by Rule 3:22-4, which bars presentation by PCR application of any claim that could "reasonably have been raised in any prior proceeding" including a direct appeal. Nevertheless, the PCR judge considered the merits of the argument and we will review the judge's conclusions.
At the plea hearing, counsel established that defendant and others were in a car and, when police sought to stop them, they fled. The following colloquy ensued:
Q: And were you in agreement with the other people in the vehicle that you should try to elude or escape the police?
Q: And during the course of that were shots fired at the police?
A: Yes, they were.
Q: And were you in accordance with that plan to attempt to elude the police by shooting at them?
The judge also elicited testimony from defendant that he "and some other folks were in a car trying to get away from the police"; that he "and they were working together . . . and there were shots fired at the police from the car to stop the police from arresting you folks"; and that defendant "knew this was happening" and was "part of the agreement to do this . . . with the other folks." Defendant also admitted knowing that shooting at the police could have resulted in serious injury. Finally he testified that, although he did not have possession of a weapon, he knew at least one other person did and that he, defendant, was "working with [the possessor] and . . . knew what he was going to do with" the gun.
We agree with the PCR judge that this testimony "clearly reflects a sufficient factual basis" for the plea to both charges. Defendant's contentions to the contrary lack sufficient merit to justify discussion in a written opinion.
Defendant also argues that his attorney provided only ineffective assistance in connection with the plea. To prevail on the claim of ineffective assistance of counsel, defendant was required to show both that counsel's performance was so deficient "that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and "that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).
A defendant may not meet the first prong by second-guessing counsel's actions, which are insulated to the extent they represent reasonable tactical choices. State v. Arthur, 184 N.J. 307, 319 (2005) (citing Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95). A defendant may not meet the second prong without showing that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698)). Absent "egregious shortcomings in the professional performance of counsel," there is no presumption that a different outcome would have resulted from effective assistance. Id. at 61.
Although the nature of PCR relief often justifies an evidentiary hearing, not all petitions require such a hearing. A hearing is required only when a defendant presents a prima facie claim. State v. Preciose, 129 N.J. 451, 462 (1992). A prima facie claim is made out when defendant demonstrates "the reasonable likelihood of succeeding under the test" described in Strickland and Fritz. Id. at 463.
Defendant identifies counsel's deficiency as a failure to explain the effect of NERA on his parole opportunities. "Gap-time" credits are required by N.J.S.A. 2C:44-5(b)(2) to address the inequity that arises if the trial of an offense is delayed until after a defendant has been sentenced on an earlier offense. See State v. Franklin, 175 N.J. 456, 462 (2003). However, when the second sentence is subject to NERA, "gap-time credits" will not reduce the period of parole ineligibility, Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 430 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002), or the mandatory period of parole supervision required after release from custody. State v. Johnson, 182 N.J. 232, 240-41 (2005) (citing State v. Freudenberger, 358 N.J. Super. 162, 167-70 (App. Div. 2003)). A defendant must be made aware of both the period of parole ineligibility, State v. Kovack, 91 N.J. 476, 479 (1982), and the mandatory parole supervision imposed by NERA that may exceed the original sentence. Johnson, supra, 182 N.J. at 240-41 (citing Freudenberger, supra, 358 N.J. Super. at 167-70).
The PCR judge found defendant was appropriately advised of the effect of NERA on his parole opportunities. We need not reach that issue, although we note the State's concession that there was "confusion" attending the explanation of the effect of NERA on defendant's parole. We need not reach the issue because we agree with the PCR judge that defendant's failure to demonstrate he would not have entered the plea had he been given the correct information is fatal to his claim of ineffective assistance of counsel.
The record does not contain the PCR application and we have nothing before us other than a statement in defendant's brief that he would have insisted on a trial had he been advised that he would be required to serve a three-year probationary period after release from custody. The record is quite the contrary. Defendant was thirty-two when he pled guilty. He was charged with being involved in shooting at two Jersey City police officers and he had an extensive criminal record, including five previous indictable convictions. His criminal record would have rendered him eligible for an extended term, N.J.S.A. 2C:44-3, and the seriousness of the offense placed him at risk of a sentence at the high end of the permissible range. Moreover, since the charges involved crimes with multiple potential victims, consecutive sentences were a distinct possibility. See State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).
The sentencing judge commented on the likely consequences of a conviction: "[Y]our lawyer has done a great service to you and you should be thanking her for the work she has done for you and saving you from going to trial and getting a sentence that would make you a very old man when you left state prison." Defendant has made no attempt to explain what would impel him to reject so favorable a sentence recommendation. We agree with the PCR judge that defendant failed to make a prima facie case of entitlement to relief as a result of ineffective assistance of counsel.
Defendant's final claim is for a re-sentence pursuant to State v. Natale, 184 N.J. 458 (2005). That case benefits only those "with cases on direct appeal as of [August 2, 2005,] and to those defendants who raised Blakely*fn1 claims at trial or on direct appeal." Id. at 494. Defendant falls into neither class of defendants and cannot benefit from Natale.