February 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONNELL LILLY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-1-325.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 27, 2010
Before Judges Axelrad and Espinosa.
Defendant Donnell Lilly appeals from the February l4, 2008 order denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing in which he argues ineffective assistance of trial counsel in failing to inform him, prior to pleading guilty, that he would be subject to the mandatory five-year parole supervision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
Essex County Indictment Number 99-01-00325, filed on January 28, 1999, charged defendant with one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7. On September 9, 1999, Essex County Indictment No. 99-09-02903 charged defendant in five counts: first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); fourth-degree resisting arrest, N.J.S.A. 2C:29-2 (count four); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five).
Defendant was also charged in Accusation Number 99-12-01478 in three counts: third-degree possession of cocaine, N.J.S.A. 2C:35-10 (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5 (count two); and third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three).
On December 8, 1999, defendant pled guilty to count one (first-degree robbery) and count three (second-degree possession of a weapon for an unlawful purpose) of Indictment Number 99-09-02903; count one (third-degree receiving stolen property) of Indictment Number 99-01-00325; and count three (third-degree possession of cocaine with intent to distribute in a school zone) of the Accusation. As part of the plea, the State agreed to dismiss all remaining counts and to recommend an aggregate sentence of fifteen years/eighty-five percent as indicated in the plea form (related to the armed robbery with the other counts merged or concurrent). Judge Michael Casale indicated he would consider sentencing the twenty-two-year-old defendant to a ten year/eighty-five percent custodial term because there were no injuries sustained in the robbery and because of defendant's youth as long as defendant appeared at sentencing and remained arrest-free in the interim. Defendant expressly acknowledged that if he violated those conditions the judge would accept the State's recommendation. In addition to acknowledging that his plea was entered knowingly, voluntarily and intelligently after consulting with counsel, defendant also answered questions establishing a factual basis for his plea to the aforementioned charges.
On February 25, 2000, defendant failed to appear at sentencing and a bench warrant was issued for his arrest. On March 2, defendant was arrested in Maryland and charged with possession and distribution of a controlled dangerous substance and on October l2, he was sentenced to a four-year custodial term. After serving two years in the Maryland state prison, defendant was extradited to New Jersey for sentencing in this case.
On December 3, 2001, defendant was sentenced by Judge Casale to an aggregate term of twelve years/eighty-five percent, subject to NERA as well as the Graves Act, N.J.S.A. 2C:43-6c. All remaining counts were dismissed and defendant's probationary sentence on another charge was terminated without improvement. The court recited as satisfactory the factual basis that defendant had acknowledged at the plea colloquy. The court found aggravating factors three, six and nine and mitigating factors two and thirteen.*fn1 Defendant was expressly informed of the NERA consequences, including the five-year period of parole supervision.
Defendant filed an appeal, which was heard on a May 5, 2003 Excessive Sentence Oral Argument (ESOA) calendar. Defense counsel argued that the court should have sentenced defendant to the ten-year term as it had initially proposed, particularly as he had already served two years in custody in Maryland. We affirmed the judgment of the trial court. State v. Lilly, No. A-5224-01T4 (App. Div. May 5, 2003). The Supreme Court denied defendant's petition for certification on September 8, 2003. State v. Lilly, 117 N.J. 573 (2003).
On May 23 and August l6, 2006, defendant filed motions to correct an illegal sentence, which were denied on June 30 and September 22, 2006, respectively. On November l3, 2006, defendant filed a PCR petition, which was denied by Judge Casale on February l3, 2008, following oral argument but without an evidentiary hearing. The PCR relief sought by defendant, though not articulated expressly, was a request to withdraw his guilty plea and ideally re-negotiate his sentence to ten years/NERA. Defense counsel presented a certification of defendant stating that when he pled guilty he did not understand the consequences, no one ever informed him that he would face an additional five-year prison sentence if he violated his parole, and had he known of these consequences, he would not have pled guilty. At oral argument, defense counsel acknowledged that the court mentioned the parole supervision at sentencing but noted it was not mentioned anywhere in the plea. She contended that defendant did not receive effective assistance of trial counsel and that the outcome would have been different if he had been told about the parole supervision in that he would not have accepted the plea and agreed to the sentence.
Defendant's argument was rejected. Judge Casale first found that defendant's PCR application was procedurally barred because it actually was a motion to vacate the plea and sentence pursuant to Rule 3:21-10, which requires a claim to be raised within seventy-five days of the judgment of conviction (JOC). His application was further procedurally precluded from consideration pursuant to Rule 3:22-3 and Rule 3:22-4, as it should have been raised on direct appeal and was not.
Nevertheless, the judge addressed defendant's requested relief on the merits, finding no need for an evidentiary hearing under the proofs presented, which did not even establish a prima facie case. The judge noted he had specifically mentioned the period of mandatory parole supervision at sentencing and it was explicitly included in the pre-sentence report and JOC. Moreover, "[d]efendant said his plea was fully explained to him by defense attorney during the plea colloquy." The judge found that defendant had "not established that his guilty plea was not voluntary and knowingly made" and "there is no indication [in the record] that [defendant] had a mistaken belief about the ramifications of his plea." See State v. Johnson, 182 N.J. 232, 236 (2005). Judge Casale further found the parole supervision period was not material based on defendant's exposure as extended-term eligible on the robbery charge alone, subjecting him to a potential twenty-five year to life sentence and in view of the favorable plea. As the judge commented:
If you look at the plea colloquy and also the plea cutoff, there was no doubt this Defendant would have taken the deal to dispose of three cases and the V.O.P. even if he, as he claims now, he didn't know. But even if he knew of the five year period of parole supervision, there's no doubt in my mind that because of his exposure he took the risk of the period of parole ineligibility, of the period of parole supervision because he got a good deal. He got a package deal to wipe out all these cases.
Finally, the judge found that trial counsel's performance was excellent as he was able to secure a reduction in the State's fifteen year recommendation even after defendant violated the acknowledged conditions that had been imposed at the plea hearing. This appeal ensued.
On appeal defendant argues that, in the interests of justice, the argument on the insufficiency of his plea should not have been procedurally time barred. He substantively argues that defense counsel was ineffective as defendant's plea was not made voluntarily with knowledge of the parole supervision period. Defendant contends there is nothing in the plea transcript to expressly demonstrate he was informed about this by defense counsel. In contrast, defendant points to his unrebutted certification, which he submits should have led the court to conclude that trial counsel had not fully informed defendant of the consequences of his plea and that defendant would not have agreed to the plea. Therefore, defendant contends, the court should have conducted an analysis of whether that failure to advise him resulted in an improper plea being taken.
Defendant further argues that the court erred in simply assuming a lack of materiality and should have remanded pursuant to State v. Johnson, supra, 182 N.J. at 244, for a materiality hearing pursuant to Rule 3:21-1, where three choices are available: (1) renegotiate the State's deal; (2) trial; or (3) reimpose the original sentence. Defendant makes it clear that he wants to be given "the benefit of the bargain" and to have "two years of his life back," namely, the judge's originally indicated ten year/NERA sentence.
Defendant next argues that although he did not formally make a motion to withdraw his plea, he sought that relief implicitly, and the court's failure to grant that request in accordance with Rule 3:21-1 was reversible error. Defendant, however, does not profess his innocence on any of the charges and expresses no desire to go to trial; he simply seeks to remand for reinstatement of the ten-year/NERA plea.
For the first time defendant makes the argument that the court erred in failing to elicit all testimony during the plea hearing to establish all elements of all of the crimes, warranting reversal. Defendant also renews the argument that has apparently been raised and rejected by Judge Casale on two prior occasions, namely that his sentence is illegal because the court failed to consider certain mitigating and balancing factors.
We are not persuaded by any of these arguments and affirm substantially for the reasons articulated by Judge Casale on the record following oral argument. We add the following comments. The court correctly concluded that defendant's claim, no matter how articulated, was procedurally barred either under Rule 3:21-10 (motion to vacate the plea and sentence) or Rule 3:22-3 and Rule 3:22-4 (PCR is not a substitute for direct appeal). See also 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.").*fn2 That includes defendant's challenge to the factual basis for his guilty plea, which not only was not raised on appeal, but was not initially brought before the PCR judge. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973) (holding that issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest). Moreover, defendant's challenge to the excessiveness of his sentence, which he incorrectly refers to as an "illegal sentence," R. 3:22-2, was already rejected on the merits on our ESOA calendar, and thus he cannot re-litigate the issue. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 483 (1997).
Nevertheless, as the judge reached the substantive issue, so will we. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S.Ct. at 2064, 2068, 80 L.Ed. 2d at 693, 698.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Thus, an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). We acknowledge that defendant was not expressly informed on the record at the plea hearing of the NERA parole supervision period and its implications, which he should have been. Nor was a supplemental NERA plea form signed.*fn3 Nevertheless, there were numerous references in the plea form and at the hearing to the parole disqualifying period and defendant does not dispute that he was aware he was subject to NERA. His only claim is that he was unaware of the supervision period and would not have accepted the plea deal had he known about it.
Defendant's conduct at the sentencing undermines that after-the-fact representation. Defendant did not question the court or give any indication whatsoever that he wished to withdraw his guilty plea when he was informed of the five-year period of parole supervision upon release. Although it would have been preferable for a NERA supplemental plea form to have been signed and for there to have been a more extensive discussion of the subject on the record, it is illogical to assume defendant would have withdrawn his guilty plea based solely on the five-year parole supervision period in view of his potential substantial exposure on the numerous charges. The fact of the matter is that defendant was informed of this provision and chose to continue to take advantage of a very generous plea offer by the State and an even more lenient sentence that the court was willing to impose. Accordingly, no materiality hearing was warranted under the circumstances of this case.