September 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ENRIQUE NOBLES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-08-2322.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Yannotti and LeWinn.
Defendant Enrique Nobles appeals from an order entered by Judge Louise Direnzo Donaldson on June 29, 2007, which denied defendant's petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Camden County Indictment No. 97-08-2322 with murder, in violation of N.J.S.A. 2C:11-3a(1) (count one); felony murder, in violation of N.J.S.A. 2C:11-3a(3) (count two); conspiracy, in violation of N.J.S.A. 2C:5-2 (count three); robbery, in violation of N.J.S.A. 2C:15-1 (count four); attempted burglary, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2a(1) (count five); possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (count six); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b (count seven); and unlawful possession of a firearm, in violation of N.J.S.A. 2C:39-5f (count eight).
On June 22, 1999, defendant pled guilty to count one, which was amended to charge defendant with aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a. The plea agreement form stated that the charges in counts two through eight would be dismissed. The form also stated that the State would recommend that defendant be sentenced to a twenty-five-year term of incarceration, with a ten-year period of parole ineligibility, and the sentence would run concurrently with a sentence that defendant was then serving. The form also stated, "Defendant [is] entitled to all lawful jail credits." On the plea form, defendant indicated that he was satisfied with the advice that he received from his lawyer and he did not have any questions concerning the plea.
At the plea hearing on June 22, 1999, the assistant prosecutor stated, "It's expressly understood that the State is not granting any jail credits to the defendant that he would not ordinarily be entitled to by law. So he's entitled to any lawful jail credits that he may have."
The judge asked defendant whether he signed the plea agreement form. Defendant stated that he read the papers before he signed them. He said that he understood what he read and all the answers to the questions on the form were true. Defendant admitted that he reviewed the questions with his attorney, his attorney answered all of his questions, and he was satisfied with the legal services provided by his attorney.
Defendant additionally stated that on October 27, 1996, Gilberto Maldonado, Victor Huerta, Angel Alicea, and Luis Hernandez came to his home on York Street in the City of Camden. Defendant said that he knew that Maldonado had a gun. They discussed committing a robbery at a residence on York Street, and defendant agreed to act as a lookout during the robbery. Defendant stated they went with Maldonado and the other men to the house, and Maldonado shot and killed Alejandro Guerrero during the course of the robbery.
The judge found that defendant's plea was voluntary. He also found that the defendant had provided an adequate factual basis for his plea to aggravated manslaughter.
Defendant was sentenced on August 5, 1999. At the sentencing hearing, defense counsel told the judge that he had informed defendant what the jail time credits would be. Counsel stated that, if he determined that the credits were incorrect, he would inform the court "what we think the correct time is."
The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge sentenced defendant in accordance with the plea agreement to a twenty-five year term of incarceration, with a ten-year period of parole ineligibility.
The judge stated, among other things, that defendant was entitled to 287 jail credits from the date of his arrest on December 13, 1996, until September 25, 1997, when he began to serve his sentence on another charge. The judge also found that defendant was entitled to gap time credits. The judge stated that, unlike jail credits: the gap time credits come off the back end. So whatever 25 years is from now, which is the year 2024, the 677 days of gap time credit that I'm going to give you work backwards from the year 2024. So it's -- I mean, I will award them, but their practical benefit to you is not nearly as great as the jail credit[s].
The judge asked whether defendant's counsel had any questions or objections regarding the jail and gap time credits. Defense counsel replied, "Not at this point." Defendant did not file a direct appeal from his conviction or sentence.
Defendant filed a motion dated February 15, 2006 in the trial court seeking to amend his sentence or withdraw his plea. The judge responded with a letter dated March 9, 2006, in which he explained the difference between jail time credits and gap time credits, noting that "gap time credit applies to the back-end of a sentence and serves only to reduce the aggregate length of the sentence."
In his letter, the judge also stated that defendant's 677 days of gap time credit would have no impact upon his period of parole ineligibility. The judge noted that defendant stated in his letter that his attorney led him to believe that the gap time credits would reduce his period of parole ineligibility. The judge suggested that defendant consider filing a petition for PCR.
On May 4, 2006, defendant filed a pro se petition for PCR, alleging that he had been denied the effective assistance of counsel. Defendant stated that his attorney misrepresented to him the amount of jail credits that he would receive as a result of pleading guilty. Defendant asserted that, as a result of the misrepresentations, defendant would have to serve nearly three more years than he had anticipated. Defendant argued that he should be permitted to withdraw his plea. The court assigned counsel to represent defendant.
Judge Donaldson heard the matter on June 29, 2007. The judge placed her decision on the record. The judge noted that Rule 3:22-12(a) requires that a petition for PCR be filed within five years of the judgment of conviction, although that time can be extended on a showing of excusable neglect. The judge stated that, when defendant was sentenced on August 5, 1999, the judge told defendant that his gap time credits would be applied to the back end of his sentence.
The judge determined that defendant's petition was untimely because it was not filed within the time required by Rule 3:22-12(a). The judge found that defendant had not established that his failure to file a timely petition for PCR was due to excusable neglect, nor did he set forth any facts to excuse the delay in asserting the claim. The judge noted that the offenses were committed in 1996 and found that the State would be prejudiced if it had to try the case.
The judge additionally found that there was "no injustice in enforcing the time limitation" in Rule 3:22-12. The judge stated that defendant had not alleged that he had been denied any rights to which he was entitled. He had not argued that he was innocent, or that the sentence was inappropriate. Defendant had only argued that he would not have pleaded guilty if his attorney had informed him that the gap time credit would not affect his period of parole ineligibility. The judge observed that, had defendant proceeded to trial and been found guilty, he would have received the same number of jail credits that he received by pleading guilty.
The judge therefore entered an order dated June 29, 2007, which denied defendant's petition. This appeal followed. Defendant raises the following arguments for our consideration:
THE PCR COURT ERRED IN FINDING THAT DEFENDANT'S PCR PETITION WAS TIME BARRED UNDER R. 3:22-12.
THE PCR COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR PCR BECAUSE DEFENDANT WAS DENIED [THE] EFFECTIVE ASSISTANCE OF PLEA COUNSEL AS HIS ATTORNEY LED HIM TO BELIEVE THAT HE WAS GOING TO RECEIVE 964 DAYS [OF] CREDIT TOWARDS HIS TERM OF INCARCERATION.
We have thoroughly considered the record in light of these arguments and the applicable law. We are convinced that defendant's arguments are entirely without merit. We therefore affirm the order denying PCR substantially for the reasons stated by Judge Donaldson in the decision that she placed on the record on June 29, 2007. We add the following comments.
Defendant argues that his petition for PCR was not time-barred because he is arguing that his sentence is illegal and such a claim can be raised at any time. See State v. Baker, 270 N.J. Super. 55, 73-74 (App. Div. 1994) (holding that a court can correct an illegal sentence at any time), aff'd o.b., 138 N.J. 89 (1994). However, defendant's claim is not that his sentence is illegal, but rather that he was denied the effective assistance of counsel because his attorney failed to advise him that the gap time credits would not reduce his period of parole ineligibility.
Indeed, as Judge Donaldson pointed out in her decision, there is nothing illegal about defendant's sentence. Defendant received the jail credits and the gap time credits that he was entitled to receive under the law. Moreover, it is well-established that while jail credits reduce the period of parole ineligibility, gap time credits do not. Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994).
We are accordingly satisfied that the trial court properly determined that defendant's ineffective-assistance-of-counsel claim was barred by Rule 3:22-12(a) because that claim had not been asserted within five years of the date of the judgment of conviction, and because defendant failed to establish that the delay in pursuing the claim was due to excusable neglect.
Defendant also argues that he was denied the effective assistance of counsel because his attorney led him to believe that he was going to receive 964 days of jail credit, rather than 287 days of jail credit and 677 days of gap time credit. Defendant asserts that he entered his guilty plea because of his attorney's erroneous advice and, had he known that he would only receive 287 days of jail credit, he would have gone to trial.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.
The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S.Ct. at 369, 88 L.Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210.
In this case, defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. There is nothing in the record to substantiate defendant's assertion that his attorney told him that gap time credits would be treated the same as jail credits. In addition, at the sentencing hearing, defendant's attorney stated that he had informed defendant what the jail credits would be.
Furthermore, the sentencing judge stated that defendant would receive 287 days of jail credits and 677 days of gap time credits. The judge also made clear that unlike jail credits, the gap time credits would be applied to the back end of the sentence and would not reduce defendant's period of parole ineligibility. Neither defendant nor defense counsel raised any objection to the judge's comments.
Moreover, defendant's own statements on the record at the sentencing hearing indicate that he was not under the impression that he would be eligible for parole in only seven years, which would have been the case if the gap time credits were treated the same as jail credits and applied to the front end of his sentence. In his allocution, defendant apologized to the victim's family and stated that he would have "to do 10, maybe 15 years before [he could] go home." Defendant's statements make clear that he was not misinformed about the gap time credits.
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