May 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROSHAWN*FN1 WARD, DEFENDANT-APPELLANT.
On appeal from the State of New Jersey, Law Division, Union County, Indictment No. 01-06-0826.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges Lintner and Alvarez.
Defendant, Roshawn Ward, appeals the denial of his post-conviction relief (PCR) application without evidentiary hearing. For the reasons that follow, we affirm.
Pursuant to agreement, defendant entered guilty pleas on February 25, 2002, to first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count nine). He was to be sentenced to fifteen years on count nine, fourteen years concurrent on count one, and six years concurrent on count five. Counts one and nine were subject to 85% parole ineligibility in accord with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. When defendant was sentenced on September 13, 2002, by the same judge who presided over the PCR application, however, the sentence imposed was reduced by a year. Appropriate fines and penalties were also imposed.
At sentencing, defendant sought to vacate his guilty plea, alleging his prior counsel and his family had coerced him into the agreement because of the potential for a significantly greater sentence were he to be convicted after a trial. The motion was denied, and neither the decision nor the sentence were appealed.
Defendant was a nineteen-year old probationer when he entered his guilty pleas. The indictment stems from a home invasion robbery on April 13, 2001, in Elizabeth. Defendant was the only perpetrator who was identified and charged with the crime. He, and at least one other person, went to the home of Fadrique Hall, Shron Hall, and Suzanne Hall. Also present in the home were two children. Fadrique Hall, the only man, was taken from the apartment while defendant held the remaining occupants, the two women and the children, hostage by use of a Tech 9 machine gun. The purpose of the conspiracy was to commit robbery, although the details were not clear from the plea transcript, nor from counsel's briefs, but presumably the removal of the adult male somehow furthered the conspiracy.
Defendant raises the following points for our consideration:
IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF
IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE POST-CONVICTION RELIEF ATTORNEY TO FAIL TO OBTAIN AFFIDAVITS OR CERTIFICATIONS FROM [WITNESSES] SO THAT THE PCR COURT WOULD BE AWARE THAT THERE WAS A PRIMA FACIE CLAIM AND WOULD HAVE THEN ALLOWED AN EVIDENTIARY HEARING
SHOULD THIS MATTER BE REMANDED FOR RESENTENCING, IT IS THE DEFENDANT'S POSITION THAT THE TRIAL JUDGE WHO DENIED THE PCR APPLICATION BE DISQUALIFIED
Essentially, defendant claims that he was ineffectively represented by trial counsel who negotiated the guilty plea, as well as by PCR counsel.
Under the familiar test, a defendant must, on an ineffective assistance of counsel claim, first demonstrate that counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Secondly, a defendant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing, and defendant must carry the burden by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant first contends, as he did before the PCR court, that his attorney did not tell him that a first-degree NERA sentence subjected him to a five-year term of parole supervision after the completion of his term of imprisonment. The term of parole supervision constitutes a direct, penal consequence about which he was entitled to be informed. State v. Johnson, 182 N.J. 232, 238-39 (2005); State v. Freudenberger, 358 N.J. Super. 162, 169-70 (App. Div. 2003).
Defendant acknowledges that the plea form he signed, which included the "Supplemental Plea Form for No Early Release Act Cases," explains that the five-year term of supervision is a consequence of the guilty plea. He nonetheless asserts that his signature on the wrong space of the NERA page, on the line for the prosecutor and not defendant, somehow proves that he did not understand the parole supervision consequence of the plea agreement. Defendant also points to the absence of any discussion on the record about parole supervision to further support the claim.
We do not agree that in this case the failure to explain the length of the term of parole supervision on the record was an error that affected the outcome, or that it establishes ineffective assistance of counsel. During the plea colloquy, defendant was asked if counsel had reviewed the plea form with him "line by line," to which defendant answered "Yes." He was asked if after that review with counsel if he read the form over on his own, and he again answered "Yes." It is of no moment that defendant signed his name on the wrong line. What is important is that by signing the page he acknowledged his review of it, and of the clear explanation it contains that the sentence he agreed to includes five years of parole supervision.
As the PCR judge noted, the NERA plea form is explicit in order to prevent the very type of claim made here, that defendant was unaware of a direct, penal consequence of the sentence. The PCR court therefore correctly found that defendant did not carry his burden of establishing a prima facie case of ineffective assistance of his plea counsel as a result of the alleged failure to explain the mandatory five-year term of parole supervision.
Defendant also asserts that PCR counsel was ineffective because he did not obtain certifications or affidavits from witnesses in support of his factual contentions. The claim is sheer speculation. The fact the five-year term of parole supervision was on the plea form, at least suggests that the plea attorney was well aware of it. Assuming defendant's sworn testimony was true at the time of the entry of his guilty plea, plea counsel explicitly reviewed that consequence with him. The executed plea form on its face bears out that no affidavit or certification could have been obtained that would have assisted defendant in pursuing PCR. Accordingly, there was no ineffective assistance by PCR counsel's failure to obtain affidavits or certifications, as there is no reason to believe they would have been available.
Defendant's final point is that upon remand the judge who heard the PCR should recuse himself, as he has already made up his mind on the subject. It is also argued as a second reason for recusal is that because the prosecutor who argued the PCR motion was on the judge's first trial team when the judge first went on the bench, there is a conflict of interest or appearance of impropriety. The claim is moot in light of our affirmance and in any event, lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Presumably, appellate counsel raised this claim at the urging of defendant. We note that while PCR counsel must "advance any claim insisted upon by a defendant," there is no such requirement controlling appellate counsel. State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007) (citing State v. Rue, 175 N.J. 1, 19 (2002); R. 3:22-6(d)), certif. denied, ____ N.J. ____ (2008).