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State v. Norman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 12, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARL NORMAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, No. 91-06-1563.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Messano and Chambers.

Defendant Carl Norman appeals from the June 25, 2007, order that denied his petition for post-conviction relief (PCR). He raises the following points on appeal for our consideration:

POINT ONE

THE PCR COURT SHOULD CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER TRIAL COUNSEL FAILED TO EXPLAIN TO THE DEFENDANT THE DIRECT PENAL CONSEQUENCES OF A GUILTY PLEA, RESULTING IN A MISUNDERSTANDING THAT MATERIALLY IMPACTED THE DEFENDANT'S DECISION TO PLEAD GUILTY.

POINT TWO

WHERE A TRIAL COURT DID NOT INFORM THE DEFENDANT OF THE LOSS OF ANY PAROLE OPPORTUTNITES, THE DEFENDANT'S GUILTY PLEA MAY BE VACATED.

POINT THREE

THE TIME BAR SHOULD BE RELAXED IN SPITE OF THE LENGTHY PASSAGE WHERE THE CONSTITUTIONAL ISSUE RAISED FOR THE FIRST TIME IS WEIGHTY AND WAS NOT INTENTIONALLY DELAYED BY THE DEFENDANT.

POINT FOUR

[RULE] 3:22-4 IS RARELY EMPLOYED TO BAR SIGNIFICANT CONSTITUTIONAL ISSUES.

POINT FIVE

APPELLATE REVIEW OF THE DEFENDANT'S CLAIM RAISED IN HIS PCR PETITION WAS NOT AVAILABLE UNTIL THE PCR COURT DENIED HIS APPLICATION.

We have considered these contentions in light of the record and applicable legal standards. We affirm.

On June 20, 1991, defendant pled guilty to a one-count accusation charging him with felony murder, N.J.S.A. 2C:11-3a(3). Pursuant to the plea agreement, on August 2, 1991, defendant was sentenced to a term of imprisonment of thirty-one years with a thirty-year period of parole ineligibility. Defendant did not file a direct appeal, but on September 30, 2005, more than fourteen years after his conviction, defendant filed a pro-se petition for PCR.

The three points defendant raised in the petition may be summarized as 1) his constitutional rights were violated when the Department of Corrections (DOC) cancelled work and commutation credits "after they were already entered on [defendant's] official classification records"; 2) his guilty plea should be vacated because the judge failed to advise him of the "direct, penal consequence" of the plea in light of the denial of these credits; and 3) his trial counsel provided ineffective assistance.

At oral argument held on June 25, 2007, PCR counsel provided the judge with account statements issued by the DOC that listed defendant's "Max Date" for release as November 18, 2015. However, a similar account statement issued in November 2003 revealed the "Max Date" to be December 17, 2020, the same date that was reflected on all of the account statements as defendant's "PED," or parole eligibility date. PCR counsel argued that defendant's petition should not be deemed time-barred because it was not until November 2003 that he knew he was not receiving any credits against his period of parole ineligibility.

Counsel further argued that defendant was unaware that he would not receive these credits when he entered his plea because neither the judge nor his attorney advised defendant in this regard. In response to the judge's inquiry, PCR counsel acknowledged that the only evidence to support the ineffective assistance of counsel claim was defendant's own conclusory certification. PCR counsel also noted that her phone conversations with trial counsel revealed that he no memory of the case.

The judge reviewed the transcript of the plea proceedings. He concluded that at the time of the guilty plea, both the prosecutor and the trial judge made it clear to defendant "that [thirty] years ha[d] to be served without eligibility for parole." The PCR judge noted that, "[I]t just appears to me . . . that but for a mistake by parole authorities as to [credits] that [] were reducing his parole date, that [defendant's] trying to make something of it, when it clearly . . . should not be allowed by the Court." The judge further concluded that defendant's allegations of ineffective assistance of counsel were unsupported.

The judge also found that the petition was time-barred under Rule 3:22-12, and also procedurally barred by Rule 3:22-4 because the issues regarding defendant's parole credits could have been raised on direct appeal, but were not. He entered an order denying the petition, and this appeal ensued.

Defendant contends that the judge should not have denied his petition upon procedural grounds and should have accorded him an evidentiary hearing. He argues that his failure to bring his claim at an earlier date was excusable in light of the DOC account statements indicating he was receiving credits. He further argues that he filed his petition within two years of discovering that he was not receiving the credits and after attempting to resolve the matter administratively. Moreover, defendant contends that he has raised a "weighty" constitutional issue, e.g., the voluntary nature of his guilty plea, and that such an issue, along with his claim of ineffective assistance of trial counsel, is rarely barred by Rule 3:22-4.

We conclude that we need not consider whether defendant's PCR petition was appropriately dismissed on procedural grounds because we are convinced that the PCR judge considered the merits of the claim and properly rejected it. Defendant concedes that he was aware at the time he pled guilty that his sentence would include a thirty-year period of parole ineligibility. This fact is repeatedly stated during the plea colloquy by the prosecutor and the judge, and defendant clearly and unequivocally stated at that time that he understood.

Despite this concession, defendant claims that he was not advised that the parole ineligibility period could not be reduced by custodial credits. Citing to our decision in State v. Alevras, 213 N.J. Super. 331, 338 (App. Div. 1986), in which we said, "at least in certain circumstances, a defendant's misunderstanding of credits may affect his understanding of the maximum exposure" and "a guilty plea based on this misunderstanding may fail to satisfy the constitutional requirement that a plea be voluntarily, intelligently and knowingly entered," defendant asserts his plea must be vacated. We disagree for several reasons.

First, defendant never asserted in his petition that he was in fact under some misapprehension regarding the application of the credits. At the time of the plea proceedings, defendant was clearly told that he was not eligible for parole until thirty years expired, and nothing in the record indicates otherwise. While defendant contends he was not advised of the inapplicability of the credits, he has never once indicated that he expected to receive them when he pled guilty. Only when he received the mistaken DOC account statements did he suddenly believe he was actually, though mistakenly, receiving these credits. On its face, therefore, the petition did not provide the basis for relief. See State v. Mitchell, 126 N.J. 565, 579 (1992)(holding that "[a] court reviewing a petition that does not allege facts sufficient to sustain th[e] burden of proof should not jump to its own conclusions regarding the factual circumstances of the case.").

Secondly, and more importantly, the plea form completed by defendant with the assistance of counsel, and signed by him at the time he pled guilty, clearly sets forth the thirty-year period of parole ineligibility, and states "this period cannot be reduced by good time, work or minimum custody credits." When he pled guilty, defendant told the judge he understood the questions on the form, that the answers were his, and that he had reviewed the form with his lawyer, who had answered "any questions" defendant had regarding the form and its contents. In other contexts, the Supreme Court has considered the plea form as important evidence of the knowing and voluntary nature of a defendant's guilty plea. See State v. Smullen, 118 N.J. 408, 415 (1990)(holding that "the context of the entire plea colloquy," including "the written plea agreement that defendant signed and defendant's consultations with his attorney[,]" demonstrated a knowing and voluntary guilty plea)(emphasis added).

The other claims that defendant has raised regarding the ineffective assistance of his trial counsel are unsupported by anything other than "bald assertions." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition. See State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). We find the argument to be of insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

20080912

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