On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-1453.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 15, 2010 - Decided: Before Judges Axelrad and Lihotz.
Defendant Aly Richardson appeals from the March 27, 2009 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant alleged, in part, ineffective assistance of counsel in connection with his violation of probation (VOP). We affirm.
Camden County Accusation 06-04-1453, filed on April 19, 2006, charged defendant with third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. On April 19, 2006, defendant entered a guilty plea to that charge pursuant to a negotiated agreement in which the State would recommend a probationary sentence and a 180-day jail term in the County Supplemental Service Program (CSLS), Home Electronic Detention (HED) or work release program. The court accepted defendant's guilty plea as knowingly and voluntarily entered.
On August 10, 2006, Judge Thomas Brown, Jr. sentenced defendant in accordance with the negotiated plea to a term of five years probation, conditioned on serving a 180-day term in the county jail, CSLS program. Late in August 2006, defendant was purportedly injured while working in the CSLS program, specifically reporting he had been struck by the CSLS van.
On or about December 15, 2006, defendant was charged with VOP. The allegations included failure to report, failure to pay any fines, and failure "to cooperate in serving 180 days in CSLS." At the hearing on February 9, 2007, the State withdrew the third count after defendant explained he had been injured while working in the program. Defendant then pled guilty to the other two counts. Judge Brown accepted the plea and revoked probation, sentencing defendant to a three-year prison term.
Defendant appealed his sentence. We affirmed in a February 7, 2008 order following an excessive sentencing oral argument (ESOA). R. 2:9-11.
On March 14, 2008, defendant filed his PCR petition, supplemented by his counsel's letter brief. Defendant asserted ineffective assistance of VOP counsel in failing to substantiate his claims and obtain a continuance to allow him to controvert the evidence against him, as well as in failing to effectuate any defense for him after defendant informed her of his excusable non-compliance with the conditions of probation. Defendant further asserted a denial of due process in that he was never given notice of the alleged violations, and also contended the probation officer committed perjury in her summary.
In his verified petition defendant certified that while working on CSLS on or about August 17, 2006,*fn1 he was struck on the right side by a trailer pulled by a van that was operated by a supervisor of the program and promptly sought medical attention. He presented CSLS with doctor's notes, which he attached, ordering an x-ray of his right knee, prescribing a muscle relaxer and a pain killer, and stating on August 29, 2006, that he was off work that day because of a knee contusion and limited standing. Defendant further contended his condition worsened and he was bedridden for approximately eight weeks, corroborated by an affidavit of his live-in girlfriend, and his condition did not allow him to travel from his home to Camden, presumably to report for CSLS and for probation. Defendant also represented that, in December, he could get out of bed but only for short periods of time, he had no phone, and on the one occasion when he called the probation office, he was informed his probation officer was no longer on his case and there was an outstanding warrant for his arrest.
Defendant also claimed he met his VOP counsel five minutes before the February 9, 2007 hearing, and she showed him the charged violations for the first time. Defendant conceded he admitted he did not report to probation during the months of October, November, and December, now blaming it on his inability to walk. He also conceded he had admitted he could not pay fines, now claiming his injuries impeded his ability to work as a handyman. Defendant additionally stated he signed the plea agreement because he had not been informed by VOP counsel that he could obtain reports and call and confront witnesses at a hearing.
Judge Brown expressly addressed and rejected defendant's claim of ineffective assistance of VOP counsel in failing to present that defendant was physically unable to comply with the terms of probation, which defendant contended would have favorably affected the outcome of the VOP hearing. Based on the PCR submissions and the VOP hearing transcript, the judge made the following findings:
According to the documents submitted along with the defendant's brief and furnished by the Camden County Department of Corrections, defendant alleged the incident occurred on August 23, 2006. Despite this, defendant finished his detail that day and reported to the program for the next three days. And it was after this point, however, that the defendant stopped reporting to the CSLS program. In addition, defendant failed to report to his probation officer and neglected to make payments on his fines and assessments.
[T]hree weeks after sentencing the defendant stopped reporting for CSLS, alleged to be as a result of physical injure[ies] sustained while participating in the program. The defendant did not, however, turn himself in to the Camden County Correctional Facility to serve his jail sentence, nor contact probation to attempt to have his sentence ...