June 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAQUAN ALLEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-09-1866.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2008
Before Judges Yannotti and LeWinn.
In May 2004, defendant faced charges under three separate Atlantic County indictments. Indictment No. 02-01-0018B charged defendant with nine separate offenses, namely: conspiracy, in violation of N.J.S.A. 2C:5-2; robbery, in violation of N.J.S.A. 2C:15-1; burglary, in violation of N.J.S.A. 2C:18-2; theft of property, in violation of N.J.S.A. 2C:20-3; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4; unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5; aggravated assault, in violation of N.J.S.A. 2C:12-1(b); criminal restraint, in violation of N.J.S.A. 2C:13-2; and possession of a weapon by a convicted person, in violation of N.J.S.A. 2C:39-7. Indictment No. 02-09-1866BCP charged defendant with one count of second-degree robbery, in violation of N.J.S.A. 2C:15-1. Indictment No. 02-12-2510B charged defendant with possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10; and possession of CDS with intent to distribute, in violation of N.J.S.A. 2C:35-5.
On May 19, 2004, defendant entered into a plea agreement on Indictment No. 02-01-0018B, whereby he pled guilty to third-degree burglary; all remaining counts of that indictment were to be dismissed, and the State recommended a five-year term of imprisonment concurrent to the sentence defendant was then serving, which was a ten-year sentence with a five-year parole ineligibility period.
On June 2, 2004, defendant entered into another plea agreement, whereby he pled guilty to the second-degree robbery charge in Indictment No. 02-09-1866BCP, and to the two CDS-related charges in Indictment No. 01-12-2510B. Pursuant to that plea agreement, the prosecutor was to recommend an eight-year prison term with a mandatory eighty-five percent parole ineligibility term pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery charge. This sentence was to be consecutive to the sentence defendant was then serving. On the drug charges, the State recommended a term of eight years concurrent to the robbery sentence and consecutive to defendant's then-current sentence.
At the June 2, 2004 plea hearing, the judge questioned defendant as to his understanding of the NERA consequences of his plea. Specifically, the judge asked defendant:
You understand that you would have to serve 85 percent of eight years before being eligible for parole, but that would be consecutive to the ten do five [defendant's then-current sentence], and that 85 percent of . . . eight years is approximately six years, nine months and 24 days. Do you understand that, sir?
Defendant responded in the affirmative.
At the conclusion of the plea hearing, defendant inquired of the court: "Do I get any credit . . . for being in the county?" The judge responded that defendant may be eligible for "[gap time] credits[,]" but advised defendant that it would "be up to probation and then, eventually, to parole." The judge stated that he would give defendant "whatever credits they write up for you."
On June 25, 2004, defendant was sentenced pursuant to the two plea agreements. At the outset, defendant raised a question as to the extent of his gap time credits. The judge noted that defendant's presentence report stated that he was entitled to 267 days' credit in gap time. The judge stated: "Whatever indictment or indictments that pertains to will of course be determined by the parole board ultimately, because they have ultimate responsibility as far as when [you get] out."
In sentencing defendant, however, the judge stated that the 267 days of gap time credit would apply to the five-year sentence on the third-degree burglary charge. In pronouncing sentence on the second-degree robbery charge, the judge again informed defendant: "You must serve 85 percent of that eight years or, roughly, six years, nine months, 24 days, before being eligible for parole."
On October 7, 2005, defendant filed a pro se motion to "correct an illegal sentence." Defendant contended that it was his understanding that the 267 days of gap time credit would be applied to his NERA parole ineligibility period on the second-degree robbery charge. Defendant argued that neither his attorney nor the court advised him that his gap time credits would not apply to that NERA parole ineligibility period.
Therefore, he also raised a claim of ineffective assistance of counsel.
On January 25, 2006, the trial judge filed a letter opinion denying defendant's motion. Defendant filed a pro se petition for post-conviction relief on May 18, 2006. The court assigned counsel to represent defendant; counsel filed a brief in support of defendant's petition for post-conviction relief on May 30, 2006.
On September 22, 2006, the trial judge held a hearing on defendant's post-conviction relief petition. Counsel stated that the "crux of [defendant's] argument . . . is that [prior counsel] failed to inform him of the inapplicability of gap time credits to the parole ineligibility period under NERA."
The trial judge denied defendant's petition for post-conviction relief, finding: (1) prior counsel had not been ineffective in failing to discuss the specific issue of how defendant's gap time credits would be applied to his various sentences; and (2) defendant had failed to demonstrate that he had expressly relied upon receiving gap time credits on his NERA parole ineligibility period, in accepting the plea agreements. On October 11, 2006, the trial judge entered an order denying defendant's post-conviction relief petition.
Defendant now appeals, raising the following issues for our consideration:
THE PCR COURT REVERSIBLY ERRED IN FAILING TO GRANT ALLEN POST-CONVICTION RELIEF BASED UPON HIS CLAIMS THAT HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
THE PCR COURT REVERSIBLY ERRED IN REJECTING ALLEN'S PETITION FOR POST CONVICTION RELIEF BECAUSE THE CUMULATIVE EFFECT OF ALLEN'S GROUNDS FOR POST-CONVICTION RELIEF WARRANTED A REVERSAL OF HIS CONVICTIONS AND SENTENCES.
AT A MINIMUM, THE PCR COURT REVERSIBLY ERRED IN REJECTING ALLEN'S REQUEST FOR AN EVIDENTIARY HEARING ON THE ISSUES ARGUED IN POINTS I AND II HEREOF BECAUSE ALLEN DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON THOSE GROUNDS AS DISCRETE ITEMS AND IN THEIR CUMULATIVE EFFECT.
Having reviewed the entire record, we conclude that defendant's arguments are without merit. We, therefore, affirm the October 11, 2006 order.
Defendant was fully informed of the specific consequences of his guilty plea to second-degree robbery at the time of the plea hearing. As noted, the judge expressly told defendant that the mandatory eighty-five percent parole ineligibility period was "approximately six years, nine months and 24 days." At no time did defendant express any assumption that his 267 days of gap time credit would be applied to that NERA parole ineligibility period.
The issue of gap time credits arises when "a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody[.]" N.J.S.A. 2C:44-5(b). In such circumstances, N.J.S.A. 2C:44-5(b)(2) provides: "Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served[.]" (Emphasis added). The "general purpose behind [this] provision is to avoid the manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position that they would have been 'had the two offenses been tried at the same time.'" Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994) (citation omitted).
NERA mandates that a sentence of incarceration for certain first- and second-degree crimes enumerated in the statute must set "a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2(a). (Emphasis added). Thus, "the Legislature has spoken in clear and unambiguous terms that a person convicted of a NERA offense must serve eighty-five percent of the sentence imposed before becoming eligible for release." Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 430 (App. Div. 2001). Were we to adopt defendant's argument that his NERA parole ineligibility period should be reduced by his gap time credits, such an interpretation "would be inconsistent with th[e] clear legislative intent." Ibid.
Twenty years ago, our Supreme Court put this issue to rest in Richardson v. Nickolopoulos, 110 N.J. 241 (1988). There, the Court "reject[ed] defendant's argument that the 2C:44-5b(2) 'gap-time' credit serves to reduce a judicial or statutory parole bar by a 'front-end' reduction of aggregated sentences." Id. at 254-55. The Court re-affirmed this position several years later in Booker, supra, 136 N.J. at 263. The Court held that "'a period of parole disqualifier is an absolute term, against which there are to be no credits (other than jail credits).'" Ibid. (quoting Booker v. N.J. State Parole Bd., 265 N.J. Super. 191, 207 (App. Div. 1993), aff'd, Booker, supra, 136 N.J. 257.)
Since we conclude that defendant had no reasonable expectation of receiving gap time credits against his NERA parole ineligibility period, we reject his argument that his trial counsel rendered ineffective assistance by not clarifying this point with him. In order to prevail upon a claim of ineffective assistance of counsel in the context of plea negotiations, a defendant must demonstrate not only that his counsel's performance was significantly defective, but also that the defective performance prejudiced defendant's right to a fair disposition of the charges. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 58 . . . (1987). And see State v. Norman, 151 N.J. 5, 38 . . . (1997), reiterating the strong presumption that counsel's performance falls within the wide range of reasonable representation. It is also clear that plea bargaining is a critical stage of the criminal proceeding at which the right of representation attaches. See State v. Powell, 294 N.J. Super. 557, 564 . . . (App. Div. 1996). And while we have not directly addressed the issue in a reported decision, we agree with those jurisdictions that have held that an attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance. [State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002).]
See also State v. Rountree, 388 N.J. Super. 190, 215 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007), in which defendant's "'bald assertion'" that he would have made a different decision in plea negotiations "but for his misunderstanding of his gap time credit" did not give rise to a meritorious "ineffective assistance claim[.]"
We reach the same conclusion here. Defendant's claim that he pled guilty in reliance upon receiving gap time credits that are expressly prohibited by statute fails to establish ineffective assistance on the part of his attorney. The record reflects that counsel negotiated extremely favorable plea agreements for defendant. His aggregate maximum exposure on the three indictments on which he was sentenced on June 25, 2004, was eighty years. Had defendant proceeded to trial and been convicted on any of those indictments, he would have been eligible, by virtue of his prior criminal record, to be sentenced to an extended term of imprisonment as a persistent offender, pursuant to N.J.S.A. 2C:44-3.
Defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2).
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