February 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASSAN ALI, A/K/A NADIR JIHAD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-01-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 27, 2010
Before Judges Axelrad and Espinosa.
Defendant Hassan Ali appeals from the June 20, 2008 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. He argues ineffective assistance of trial counsel in failing to inform him of the penal consequences of his plea, namely that gap time credits would not be applied to the NERA sentence, N.J.S.A. 2C:43-7.2, or to the five-year period of parole supervision. He also argues ineffective assistance of appellate counsel in declining to request that his appeal be heard on a plenary calendar rather than on an Excessive Sentencing Oral Argument (ESOA) calendar. We affirm.
On January 14, 2003, defendant was charged, along with co-defendants, Michael Brooks and Bernard Jackson, under indictment number 2003-1-179, with two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and five); two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts two and six); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts three and seven); and two counts of fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (counts four and eight).
On June 20, 2003, defendant pled guilty to two counts of first-degree robbery, two counts of third-degree unlawful possession of a weapon and one count of fourth-degree possession of a defaced firearm. As set forth in the plea form, the State agreed to dismiss the three remaining counts and to recommend that defendant be sentenced as a second-degree offender for the robberies and that any custodial sentence not exceed eight years with an eighty-five percent period of parole ineligibility under NERA. Defendant also circled his acknowledgment of question seven on the plea form referencing the mandatory period of parole ineligibility and signed the supplemental NERA form, which again referenced the eighty-five percent period of parole ineligibility and the five-year period of parole supervision.
During the plea colloquy, defendant acknowledged the knowing and voluntary nature of his plea and provided a factual basis. The court specifically advised defendant that because he was pleading guilty to two robberies subject to NERA, he would have to serve eighty-five percent of his sentence before being eligible for parole and he would be on parole for five years after his sentence. The court also explained the consequences of the parole supervision period. Defendant expressly acknowledged his understanding of his NERA sentence.
At the sentencing hearing on August 22, 2003, the court and defendant had an extensive discussion regarding gap time credits and the NERA parole disqualifier. The court informed defendant, and he clearly understood, that he had 273 days of gap time, and his credits would be applied to the fifteen percent left on his sentence after he completed the NERA portion. In other words, he was only entitled to gap time off the "back end" of his sentence, to be calculated by the Parole Board, not off the "front end" of his sentence. The court also informed defendant that because it was "NERA on a first degree [h]e's going to be on [parole for] 5 years." Defendant was sentenced to an aggregate term of eight years/eighty-five percent, subject to NERA (including a five-year period of parole supervision) as well as the Graves Act, N.J.S.A. 2C:43-6c, on the robberies, with all other terms of the negotiated plea accepted. The court found aggravating factors three, six and nine*fn1 and no mitigating factors.
Defendant filed an appeal, which was heard on a January l0, 2006 ESOA calendar. Defense counsel argued: (1) defendant was unaware of or did not understand the five-year period of parole ineligibility and thus should be entitled to withdraw his guilty plea under State v. Freudenberger, 358 N.J.
Super. 162 (App. Div. 2003), and (2) gap time and commutation credits should be applied to the NERA parole supervision period. We affirmed the judgment of the trial court. State v. Ali, No. A-1380-04T4 (App. Div. January 10, 2006). The Supreme Court denied defendant's petition for certification on April 11, 2006. State v. Ali, 186 N.J. 605 (2006).
On June 27, 2006, defendant filed a PCR petition that was denied by Judge Teare on June 20, 2008, following oral argument with defendant present, but without an evidentiary hearing. Defense counsel acknowledged that defendant knew he got a fair sentence and did not want a different plea. Counsel articulated defendant's position as not understanding the penal consequences of pleading guilty because he thought he was going to get 273 days of gap time applied to his sentence even though he was told that it would not apply to the "front end." Counsel explained:
Because of the nature of a NERA plea the 273 days does not apply to the first part, the 85 percent. It's supposed to apply to the l5 percent that's left over. However, on a NERA plea there is no time left over. So basically it would apply to the five-year parole supervision. However, it doesn't apply to that, so basically [defendant's] position is that he is serving two mandatory parole ineligibility periods.... He really just wants to be awarded his 273 days of gap time... applied to the five-year parole supervision, or the front end, or the 85-percent parole ineligibility.... [H]e entered... into the plea... knowing that he was going to get these 273 days somehow. And the judge explained to him that they would be applied to his sentence, but in essence they are not.
Defendant's argument was rejected. The court found defendant failed to present a prima facie showing of ineffectiveness of trial or appellate counsel as required by State v. Preciose, 129 N.J. 451, 462-63 (1992), so as to warrant an evidentiary hearing. The PCR judge was also satisfied that the trial court had taken "great pains to explain how the gap-time would be applied," namely that they could not be used to reduce parole eligibility under the law but would be applied by the Parole Board to reduce any period of incarceration remaining after the eighty-five percent NERA disqualifier is served. Judge Teare further noted that defendant received an "added bonus" of a lower sentence than the stated offer. The judge concluded that simply because the gap time awarded defendant was applied as mandated by law, and not as he would like it to be applied, does not make it an uninformed or misinformed penal consequence of the sentence or justify an ineffective assistance of counsel claim. This appeal ensued.
On appeal, through counsel, defendant renews the arguments made to the PCR court as to ineffective assistance of trial and appellate counsel. Defendant alleges that he was not told that gap time credits could not be used to reduce his five-year period of parole supervision after the completion of his sentence and that the lack of this knowledge was material to his guilty plea and prejudiced him. He urges that the failure to be properly advised by trial counsel as to the way gap time credits could be used constituted ineffective assistance of counsel. He requests that the matter be remanded for an evidentiary hearing so he can "prove his lack of knowledge of these penal consequences of his plea and the resulting prejudice." Defendant also filed a pro se brief arguing that he had "a constitutional right and expectation of receiving gap time and jail credit per the plea colloquy on the record."
We are not persuaded by any of these arguments and affirm. 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. Accordingly, Judge Teare correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.
Contrary to jail credits awarded pursuant to Rule 3:21-8, where the credit is applied to the front end of a sentence, gap time credit is applied to the back end of the aggregated sentences. Gap time credit may not be used "to reduce a judicial or statutory parole bar by a 'front-end' reduction of the aggregated sentences." Richardson v. Nickolopoulos, 110 N.J. 241, 255 (l988) (Richardson II). Nor may gap time credit be applied to reduce the eighty-five percent parole ineligibility period mandated by NERA. Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 429 (App. Div. 2001). We explained:
[A] judicially imposed period of parole ineligibility... is not reduced by gap time. In our view, 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. [Id. at 430.]
The court provided an adequate explanation of the operation of gap time credits to defendant, fully informing him consistent with Meyer that they would be applied to the fifteen percent remaining on his sentence after he completed the mandatory parole disqualifier. Defendant was also informed he would have to serve a five-year period of parole supervision.
Moreover, defendant failed to make any showing of the materiality of this information to his decision to plead guilty or that he was prejudiced as a result of his mistaken belief. See State v. Johnson, 182 N.J. 232, 241 (2005). Accordingly, no evidentiary hearing as to materiality is warranted. Id. at 244. In addition, defendant does not seek to vacate his guilty plea -- to the contrary, he expressly acknowledges he received a favorable sentence*fn2 as part of the negotiated plea. Instead, the type of relief he is seeking, in essence "front loading" his gap time credits, is not permissible under the law. Defendant cannot obtain relief indirectly through a claim of ineffective assistance of counsel on PCR which he could not have obtained on direct appeal.
We also reject defendant's claim of ineffective assistance of appellate counsel. Defendant's argument that his gap time credits should be applied to the five-year period of parole supervision under NERA once he is released from incarceration would have been unsuccessful even if raised in a plenary appeal rather than on an ESOA calendar. We rejected a similar argument in Salvador v. Department of Corrections, 378 N.J. Super. 467 (App. Div.), certif. denied, l85 N.J. 295 (2005), in which we held that commutation and work credits could not reduce a mandatory five-year period of parole supervision pursuant to NERA. We acknowledge that in Salvador we considered the question in terms of commutation and work credits rather than gap time credits, id. at 468; however, we can perceive of no principled distinction between the two in terms of the relief defendant is seeking.