May 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRYL JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0385.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2010
Before Judges Fuentes and Gilroy.
Defendant Darryl Johnson appeals from the November 1, 2007 order that denied his petition for post-conviction relief (PCR).
We reverse and remand for further proceedings consistent with this opinion.
On February 9, 2004, an Essex County Grand Jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count nine). Co-defendants Ahmad Hagler and Michael Lattimore were also charged with various offenses in the same indictment.
On June 28, 2004, a jury found defendant guilty of second-degree burglary and third-degree possession of a controlled dangerous substance, along with other related charges, under Morris County Indictment Nos. 03-02-0188 and 03-09-1055. On September 1, 2004, the trial court sentenced defendant on his convictions under the Morris County indictments to an aggregate term of seven years of imprisonment with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of parole supervision upon release. At time of sentencing, defendant received 632 days of jail credit on Indictment No. 03-02-0188 and three days of jail credit on Indictment No. 03-09-0155.
On February 3, 2005, defendant entered into a negotiated plea agreement to the lesser-included offense of first-degree aggravated manslaughter on count one, N.J.S.A. 2C:11-4a, and on counts four and nine, in exchange for the State recommending an aggregate term not to exceed fifteen years of imprisonment with an 85% period of parole ineligibility pursuant to NERA. The State also agreed to recommend that the sentences run concurrent with the sentences defendant was then serving on the Morris County convictions.
On April 1, 2005, the trial court sentenced defendant in accordance with the plea agreement. On count one, the court sentenced defendant to a fifteen-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to NERA, and to a five-year term of parole supervision upon release; on count four, to a five-year term of imprisonment; and on count nine, to a ten-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to NERA, and to a three-year term of parole supervision upon release. Defendant also received 341 days of jail credit and 212 days of gap-time credit. The court ran the sentences concurrent with each other and with the sentences defendant was then serving on the Morris County convictions.
Defendant appealed his sentences as excessive. We affirmed in an appeal heard on the excessive-sentence calendar. State v. Johnson, No. A-6226-05 (February 6, 2007).
On February 2, 2007, defendant filed a pro se petition for PCR, contending that he was denied effective assistance of trial counsel because his attorney incorrectly advised him at the plea proceeding that the jail and gap-time credits would reduce his period of parole ineligibility on count one: "[C]counsel misrepresented to defendant the actual jail credits he would receive by pleading guilty, and those misrepresentations are causing defendant to serve three more years than he expected to serve." In support of his petition, defendant submitted his certification stating that his trial attorney had assured him that he was going to receive 975 days of jail credit, and that the 975 days "would come off the 85% of 15 years."
On November 1, 2007, the trial court entered an order supported by an oral decision denying the petition without an evidentiary hearing, determining that the issue whether defendant should have additional jail or gap-time credits applied against the NERA portion of his sentence rested with the State Parole Board, not the trial court.
On appeal, defendant argues:
DEFENDANT-APPELLANT WAS DENIED HIS CONSTITITIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL ([U.S. Const., Amends. VI and XIV; N.J. Const. (1947), Art. I, ¶ 10]). THEREFORE, THE COURT SHOULD GRANT THE MOTION FOR POST-CONVICTION RELIEF.
IN THE ALTERNATIVE, BECAUSE THE DEFENDANT-APPELLANT HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THE ISSUE.
(A) TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE DEFENDANT-APPELLANT THAT HIS GAP-TIME CREDIT OF 212 DAYS COULD NOT BE APPLIED TO REDUCE THE 85% PERIOD OF PAROLE INELIGIBILITY MANDATED BY [NERA].
(B) TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE DEFENDANT-APPELLANT THAT HIS JAIL-TIME CREDIT OF 976 DAYS COULD NOT BE APPLIED TO REDUCE THE 85% PERIOD OF PAROLE INELIGIBILITY MANDATED BY [NERA].
THE TRIAL COURT ERRED BY FAILING TO ENSURE THAT THE DEFENDANT'S GUILTY PLEA WAS MADE WITH KNOWLEDGE OF THE DIRECT OR PENAL CONSEQUENCES OF THE PLEA.
The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn1 See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).
The trial court ordered that the sentences imposed on the Essex County convictions are to run concurrent to each other and to the sentences imposed on the Morris County convictions. As such, the Morris County sentences merged in and will be satisfied by the discharge of the Essex County sentences. N.J.S.A. 2C:44-5e(1) (providing that "[w]hen terms of imprisonment runs concurrently, the shorter terms merge in and are satisfied by discharge of the longest term").
Jail credits are governed by Rule 3:21-8. That rule provides in pertinent part that "[t]he defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of sentence." R. 3:21-8. By its own terms, "[t]he credit requirements of the rule are mandatory." Pressler, Current N.J. Court Rules, comment on 1.1 R. 3-21.8 (2010). Generally, jail credits are "only allowable for a period of incarceration attributable to that crime and hence time spent in custody on other charges is not subject to credit." Ibid. Because under the rule jail credits are applied to the front end of a sentence, Booker v. N.J. State Parole Bd., 265 N.J. Super. 191, 207 (App. Div. 1993), aff'd, 136 N.J. 257 (1994), the defendant is entitled to have jail credits applied to periods of parole ineligibility imposed on a conviction. State v. Grate, 311 N.J. Super. 456, 459 (App. Div. 1998).
Gap-time credit is provided by statute. N.J.S.A. 2C:44-5b. Gap-time credit must be awarded to a defendant on a showing of the following three criteria: "(1) the defendant has been sentenced previously to a term of imprisonment, (2) the defendant is sentenced subsequently to another term, and (3) both offenses occurred prior to the imposition of the first sentence." State v. Franklin, 175 N.J. 456, 462 (2003). However, contrary to jail credits awarded pursuant to court rule, gap-time credits 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, 254-55 (1988). Accordingly, gap-time credits may not be applied to reduce the 85% period of parole ineligibility mandated by NERA. Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 429 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002).
Defendant did not argue in the trial court, and does not argue on appeal, that he is entitled to have the 212 days of gap-time credit applied against the base term on his sentence on count one; nor that he did not receive 635 days of jail credit against the sentences imposed on the Morris County convictions. Rather, defendant contends that trial counsel misrepresented to him that all of those credits would be applied against the period of parole ineligibility on count one, thereby reducing his overall period of parole ineligibility by approximately three years. Defendant asserts that had he known those credits could not be used to reduce the period of parole ineligibility on count one he would not have pled guilty to the NERA offense.
Rule 3:9-2 governs the taking of pleas; in particular, it mandates that a court not accept a guilty plea to a criminal charge without first "determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea." "The specificity and rigor embodied in Rule 3:9-2 manifest a systemic awareness that a defendant waives significant constitutional rights when pleading guilty, which places an affirmative obligation on a court to reject a plea of guilty when that court is not independently satisfied that the Rule's prerequisites are met." State ex rel. T.M., 166 N.J. 319, 326 (2001).
In determining whether a defendant understands the consequences of his or her plea, "the court must ensure that defendant [has been] informed of the direct penal consequences of the plea, generally, those relating to sentencing." Pressler, Current N.J. Court Rules, comment 1.4.1 on R. 3:9-2 (2009). A court must inform a defendant of the maximum custodial sentence and fine that may be imposed for the offense to which he or she is pleading before the court accepts the plea. State v. Johnson, 182 N.J. 232, 241 (2005) ("hold[ing] that being subject to NERA's mandatory period of parole supervision constituted a direct, penal consequence of [a] defendant's plea," entitling the defendant to seek vacation of the plea); State v. Kovack, 91 N.J. 476, 481-84 (1982) (vacating a defendant's sentence and remanding on the ground that the defendant had not been informed of his exposure to a period of parole ineligibility as part of his sentence prior to entering his or her guilty plea). See also Sheil v. N.J. State Parole Bd., 244 N.J. Super. 521, 528 (App. Div. 1990) (stating that a defendant's misunderstanding of the amount of gap-time credits he was entitled to receive "may affect his understanding of the maximum time he will serve under a plea agreement"), appeal dismissed, 126 N.J. 308 (1991).
Here, the trial court did not address defendant's argument that trial counsel had misrepresented the amount of jail and gap-time credits that were to be applied against the NERA period of parole ineligibility imposed on count one. Indeed, as we understand defendant's argument, trial counsel misrepresented to him that the jail credits he received on the Morris County convictions and the gap-time credits he received on the Essex County convictions would be applied against the period of parole ineligibility on count one because the sentences were to run concurrent with each other. Defendant contends that he would not have pled guilty to a NERA offense if he had been informed otherwise. Because the trial court did not address that issue and the record does not contain sufficient information to flesh out what information defendant received from his trial counsel, we reverse and remand for the court to conduct an evidentiary hearing.
Reversed and remanded. We do not retain jurisdiction.