May 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHEEM PRATT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-02-0648 and 98-02-0649.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2008
Before Judges Lintner and Alvarez.
This appeal raises the question of whether an incorrect notation of years of parole ineligibility to which defendant would be sentenced invalidates an otherwise enforceable plea agreement. We hold that in this case it does not, and thereby affirm the denial of defendant's post-conviction relief (PCR) petition.
Defendant had just turned seventeen when he waived the jurisdiction of the family court over his murder and unrelated second-degree assault charges, and consented to have the matters addressed in adult court. Immediately following the waiver hearing on February 18, 1998, defendant entered a guilty plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and an unrelated second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).
Pursuant to the negotiated plea agreement, on April 3, 1998, defendant was sentenced to twenty-four years in state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the reduced charge of aggravated manslaughter, and a concurrent ten years on the unrelated aggravated assault, also subject to NERA. Defendant thereafter filed an appeal of the sentence pursuant to Rule 2:9-11, but the appeal was denied and the sentence affirmed.
Defendant then filed a pro se petition for PCR on January 6, 2003,*fn1 counsel was subsequently assigned, and PCR denied on August 17, 2006. The only issues raised before the PCR judge were whether defendant made a knowing, intelligent and voluntary waiver of the jurisdiction of the family court, and a knowing, voluntary and intelligent waiver of his right to trial. Defendant claimed he was forced into the waiver and the entry of the guilty plea by his attorney. When the motion was denied, this appeal followed.
During the course of the juvenile waiver hearing, defense counsel said:
Judge, the juvenile will be entering a plea to an accusation charging aggravated manslaughter, which is a first degree offense. And the sentencing on that will be 24 years subject to the eighty-five percent rule. In other words, the juvenile won't be eligible for parole for a period of 20 years.
Defense counsel also discussed in detail the potential sentencing faced by the defendant if convicted at trial. She explained that defendant's decision to waive jurisdiction was attributable, in part, to receipt of an unfavorable expert opinion. A juvenile must present favorable expert testimony in order to establish the "probability of rehabilitation prior to reaching the age of nineteen" in order to meet his heavy statutory burden when attempting to defeat a waiver application pursuant to N.J.S.A. 2A:4A-26(a). State v. Scott, 141 N.J. 457, 464 (1995). Having considered all the alternatives, defense counsel stated that she and her client had determined it was in his best interests to waive jurisdiction and enter guilty pleas.
At the plea hearing, which immediately followed, the prosecutor repeatedly referred to the aggregate time to which defendant would be sentenced as twenty-four years subject to 85% parole ineligibility. On the plea form signed by defendant,*fn2 paragraph thirteen notes that the twenty-four year term of imprisonment to which defendant would be sentenced was subject to the "85% law." In paragraph twenty of the form, defendant agreed to waive notice of the applicability of the "85% law."
In paragraph seven, however, someone, presumably defense counsel, erroneously noted that the charge requires a mandatory term of parole ineligibility of fifteen years and no months.
Next to that paragraph, in large writing, counsel noted "85% Rule."
When defendant was sentenced, the court specifically stated that he was "sentenced to 24 years in the [s]tate [p]rison, 85% of that period or in excess of 20 years will be served without possibility of parole." The judgment of conviction indicated that his term of parole ineligibility would be twenty years and one hundred and forty-six days, or 20.4 years on the reduced charge of aggravated manslaughter.
Defendant now raises new contentions for our consideration:
THE COURT COMMITTED PLAIN ERROR CAPABLE OF PRODUCING AN UNJUST RESULT IN ACCEPTING A PLEA THAT CONTAINED A PROMISE OF A LOWER TERM OF PAROLE INELIGIBILITY THAN DEFENDANT ULTIMATELY RECEIVED AT SENTENCE (NOT RAISED BELOW).*fn3
DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED BY THE U.S. CONSTI., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
DEFENDANT'S SENTENCE IS ILLEGAL.
These points present issues not argued to the PCR judge. Generally, issues not raised in the trial court will not be considered on appeal unless they are jurisdictional in nature, or substantially implicate the public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because defendant arguably raised ineffective assistance of counsel claims before the PCR court, however, we will address the second point of the brief at some length. See State v. Gruber, 362 N.J. Super. 519, 530 (App. Div.) (explaining that we will consider certain aspects of arguments not raised before the trial court when "the general tenor of the . . . argument remains the same" as the one raised below), certif. denied, 178 N.J. 251 (2003).
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. 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).
A defendant will not be held to a plea agreement where the sentence imposed is not in accord with his understanding of it, if defendant's misunderstanding contributed materially to defendant's decision to accept the plea. State v. Johnson, 182 N.J. 232, 241-42 (2005). Were defendant able to establish that he had not been advised as to the parole ineligibility term, he would undoubtedly have made out a prima facie case of ineffective assistance of counsel such as would warrant an evidentiary hearing and might ultimately warrant relief. See State v. Burford, 163 N.J. 16, 21-22 (2000); State v. Kovack, 91 N.J. 476, 485-86 (1982). The question to be answered in this case, however, is whether the circumstances surrounding defendant's waiver, the entry of his guilty plea, and the imposition of sentence, bear out the claim.
Defendant's theory is that counsel's mistaken designation of the parole ineligibility term in paragraph seven of the plea form means he was inaccurately advised of the consequences of his plea. It bears noting that the State objects to any consideration of this point as it contends that issues related to defendant's sentence are procedurally barred pursuant to Rule 3:22-3 and fit none of the exceptions listed in Rule 3:22-4.
See State v. Afanador, 151 N.J. 41, 50 (1997) ("PCR cannot be used to circumvent issues that could have, but were not raised on appeal, unless the circumstances fall within one of three exceptions."). By casting the sentencing issue in terms of ineffective assistance of counsel, defendant side-steps the bar that would ordinarily preclude review.
The State suggests that the error was probably due to counsel merely misconstruing the form, believing that the paragraph required insertion of the non-NERA parole ineligibility, which was fifteen years, or half the thirty-year maximum sentence for aggravated manslaughter. In other words, the State suggests that counsel's scrivener's error was the result of a misunderstanding of how the plea form was to be completed and nothing more, and that this explains why in large print, the phrase "85% Rule" is noted alongside. Although the ordinary parole ineligibility term pre-NERA would have been fifteen years, it was incorrect post-NERA.
The reason for the error is of no consequence. Despite the erroneous notation, the record reflects that defendant heard his attorney say at the waiver hearing, immediately preceding his guilty plea, that he would not be eligible for parole for over twenty years. The attorney referred to the term of parole ineligibility during a detailed and comprehensive on-the-record summary of the considerations that resulted in her client's decision to plead guilty. At the plea hearing the prosecutor referred to defendant's sentence as "24 years subject to the 85% law," and added that defendant was waiving written notice of the 85% law. We therefore conclude from our review of the record that prior to the waiver and the plea, defendant had been made aware of the correct parole ineligibility term.
During sentencing, the judge specified that defendant was to receive a parole ineligibility term in excess of twenty years. The judgment of conviction (JOC) reflected that defendant was sentenced pursuant to NERA and was subject to a parole ineligibility term of 20.4 years. Defendant's resounding silence at the waiver hearing, the plea hearing, the sentence and upon receipt of his JOC, corroborate our review of the record. Defendant did not question the parole ineligibility term because he was well aware of it prior to imposition.
Despite the scrivener's error, defendant was correctly advised of the penal consequences of his guilty plea. The mistake on the part of his attorney was mechanical. This mistake does not fall below an objective standard of reasonableness, therefore defendant fails to meet the first prong of the Strickland test. Defendant has not made out a prima facie case which warranted an evidentiary hearing.
Defendant contends in his first point that the sentencing court committed plain error because it accepted a plea when the term of parole ineligibility was "unclear," and imposed a higher term of parole ineligibility on sentencing than defendant had been promised. This argument about the sentence is improper for several reasons. First, it was not raised in the Law Division. Furthermore, the sentence was already considered on appeal as an excessive sentence. Defendant is therefore barred pursuant to Rule 3:22-5 from raising the issue anew on PCR. Only issues related to illegal sentences can be raised at any time. State v. Levine, 253 N.J. Super. 149, 154 (App. Div. 1992). Moreover, the argument is premised on the error in the plea form having impact beyond its four corners, which a careful review of the record reveals it did not. It is specious to suggest that the scrivener's error meant the term of parole ineligibility was ambiguous or unclear, on the contrary, all the participants in the plea and sentence knew it would be 85% of the incarceration term. This point lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's final contention, that the sentence was illegal because it did not accord with defendant's understanding of the agreement, also lacks merit. As we have said, the record does not bear out the claim. Even if the record was as defendant contends, the characterization does not make the sentence illegal. An illegal sentence is one which exceeds the penalties authorized by statute for a specific offense, State v. Murray, 162 N.J. 240, 246 (2000), or which is not imposed in accordance with law. Id. at 247. Defendant's purported misunderstanding of the parole ineligibility term does not make the sentence illegal. Therefore, the Rule 3:22-5 bar applies. This point does not warrant additional discussion in a written opinion. R. 2:11-3(e)(2).