January 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS CRUZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-03-0355 and 06-05-0664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010 - Decided Before Judges Gilroy and Ashrafi.
Defendant Carlos Cruz appeals from the October 20, 2008 order that denied his two petitions for post-conviction relief (PCR). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
On March 8, 2005, arising from an incident that occurred on January 26, 2005, a grand jury charged defendant under Indictment No. 05-03-0355 with third-degree possession of a controlled substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1)(9) (count two); and fourth-degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 (count three). On August 2, 2005, arising from an incident that occurred on April 20, 2005, a grand jury charged defendant under Indictment No. 05-08-1032 with third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1). On December 12, 2005, arising from an incident that occurred on August 23, 2005, the State charged defendant under Accusation No. 234-12-05 with fourth-degree possession of a weapon (a stun gun), N.J.S.A. 2C:39-3h.
On December 12, 2005, defendant entered into a plea agreement with the State. Pursuant to the agreement, defendant pled guilty to count two under Indictment No. 05-03-0355; the sole count under Indictment No. 05-08-1032; and the charge under Accusation No. 234-12-05. In exchange for defendant's plea, although defendant was eligible to be sentenced to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a, the State agreed that it would not seek an extended-term sentence, but rather would recommend that defendant be sentenced to an aggregate term of sixteen and one-half years of imprisonment with a five and one-half year period of parole ineligibility. Specifically, the State agreed to recommend that defendant be sentenced to twelve years of imprisonment with five and one-half years of parole ineligibility on count two of Indictment No. 05-03-0355; three years of imprisonment on the single count of Indictment No. 05-08-1032; and eighteen months of imprisonment on Accusation No. 234-12-05, the sentences to run consecutive to each other.
On January 30, 2006, the court sentenced defendant on count two under Indictment No. 05-03-0355 to a sixteen-year term of imprisonment with a five and one-half year period of parole ineligibility; on the single count under Indictment No. 05-08-1032, to a five-year term of imprisonment; and on the charge under Accusation No. 234-12-05, to a nine-month term of imprisonment, all sentences to run concurrent with each other. Accordingly, the court sentenced defendant to an aggregate term of imprisonment of sixteen years, rather than the sixteen and one-half years defendant had agreed to under the terms of the plea agreement.
In the interim on May 16, 2006, arising from an incident that occurred on November 23, 2005, a grand jury charged defendant under Indictment No. 06-05-0664 with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count three); third-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count seven). On November 13, 2006, defendant pled guilty to count two of the indictment in exchange for the State recommending a seven-year term 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, the sentence to run concurrent with the sentences defendant was then serving under the prior two indictments and accusation.
On February 13, 2007, the court sentenced defendant pursuant to the terms of the plea agreement to a seven-year term of imprisonment with an 85% period of parole ineligibility pursuant to NERA. The court directed that this sentence run concurrent with the sentences defendant was then serving and awarded defendant sixty-two days of jail credit (November 29, 2005 to January 29, 2006) and 380 days of gap-time credit (January 30, 2006, to February 13, 2007).
Defendant timely filed two PCR petitions challenging the sentences imposed under Indictment Nos. 05-03-0355 and 05-08-1032, and Accusation No. 234-12-05 (collectively hereinafter referred to as Indictment No. 05-03-0355), and to the conviction and sentence imposed under Indictment No. 06-05-0664. Assigned counsel subsequently filed briefs in support of each petition. In the petition challenging the sentences imposed under Indictment No. 05-03-0355, defendant argued that he was denied effective assistance of counsel because his trial attorney filed a motion seeking a Wade*fn1 hearing, causing the State to withdraw a prior plea offer of a lesser sentence than that which he had later accepted under the plea agreement. Defendant also argued that trial counsel failed to properly explain the terms of the plea agreement to him before he accepted it and allocuted. In his challenge to the conviction and sentence imposed under Indictment No. 06-05-0664, defendant again argued that he was denied effective assistance of counsel because his attorney had "told him he would receive jail credit for 380 days he had already spent in custody on his previous charges," not gap-time credit. Defendant also contended that his attorney failed to file a motion to withdraw his plea as instructed. On October 20, 2008, the trial court entered an order without an evidentiary hearing denying defendant's petitions.
On appeal, defendant argues:
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FROM BOTH OF HIS TRIAL ATTORNEYS, ONE WHO FILED A MOTION WITHOUT DEFENDANT'S PERMISSION THAT CAUSED THE STATE TO WITHDRAW A PLEA OFFER THAT DEFENDANT WAS PREPARED TO ACCEPT AND THE OTHER WHO MISINFORMED DEFENDANT AS TO THE NATURE OF THE CREDITS THAT HE WOULD RECEIVE PURSUANT TO THE TERMS OF THE PLEA AGREEMENT.
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.*fn2 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 first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).
We first address the court's denial of defendant's petition challenging the sentences imposed under Indictment No. 05-03-0355.
On March 18, 2005, the prosecutor made a plea offer on Indictment No. 05-03-0355 only. The offer was ten years of imprisonment with a five-year period of parole ineligibility. The offer was conditioned, however, on defendant not filing any motions challenging any charges against him; otherwise, the offer would be withdrawn. Defendant contends that contrary to his wishes, his attorney filed a motion for a Wade hearing challenging charges then pending against him for stalking and making terroristic threats against a third party.
The filing of the motion caused the prosecutor to rescind the plea offer. On December 12, 2005, after defendant was charged under Indictment No. 05-08-1032 and Accusation No. 234-12-05, defendant entered into a plea agreement on all three indictments. On that date, after a lengthy discussion concerning which charges defendant would plead guilty to, defendant agreed to accept the prosecutor's recommendation of an aggregate sixteen and one-half year sentence with a five and one-half year period of parole ineligibility. In exchange, the State agreed to dismiss the remaining charges of Indictment No. 05-03-0355. The following discussion occurred during the plea colloquy:
THE COURT: You understand the sentence potential of these charges carry twenty-six and a half years incarceration, five hundred and forty-five thousand dollars in fines and various assessments in excess of three hundred dollars?
THE DEFENDANT: Yes.
THE COURT: And the State has recommended
. . . as to how I should sentence you on these three charges with an aggregate sentence. What is the sentence.
THE DEFENDANT: Sixteen with a sixty-six month stip[ulation,] I believe.
THE COURT: Okay. I have it sixteen and a half. Sixteen and six months.
THE DEFENDANT: Yeah, I guess.
THE COURT: With a five . . . year six month period of parole ineligibility would be sixty-six months.
THE DEFENDANT: Yes.
On January 30, 2006, the court sentenced defendant to an aggregate term of sixteen years of imprisonment with a five and one-half year period of parole ineligibility.
Subsequent to his sentencing, defendant filed a motion seeking to withdraw his plea to Indictment No. 05-03-0355, contending that his trial attorney improperly filed a motion for a Wade hearing in connection with another matter then pending against him, which filing caused the State to withdraw its original offer of a ten-year sentence with a five-year period of parole ineligibility on Indictment No. 05-03-0355 only. On November 13, 2006, the trial court dismissed the motion without prejudice because defendant failed to provide the court with transcripts of the prior plea and sentencing hearings. The court advised defendant that he could file a PCR petition requesting to withdraw his plea.
On October 20, 2008, the court entertained defendant's PCR petition filed under Indictment No. 05-03-0355. Contrary to the trial court's prior advice, defendant's petition did not request that he be permitted to withdraw his guilty pleas but only that he be re-sentenced to the lesser term originally offered by the State prior to defense counsel filing a motion for a Wade hearing.
THE COURT: On this application for post-conviction relief, it's a Strickland application and defendant's complaint is that his lawyer filed motions without his authorization and when that happened it cost him a more lenient plea offer than he ultimately accepted and the relief that he now seeks is not to withdraw the plea which one would think would be an appropriate remedy if there were no agreement but rather to rewrite the plea agreement really to give him the lower plea offer.
Is that a fair characterization of what this is all about?
[PROSECUTOR]: Yes, Judge.
Defense counsel did not object to the trial court's construction of the relief requested under the petition. Rather, defense counsel impliedly agreed with the trial court's interpretation of the petition, stating: "Judge, I'm going to rely on [the] argument in my brief and submit." In denying defendant's requested relief under the petition, the court reasoned:
THE COURT: The relief that's being asked [for, I cannot] grant. I [cannot] do it[.] [S]pecifically[,] rewind the clock and compel the State to extend an offer that had expired for one reason [or] another. There's no Constitutional right to a plea offer[,] and the State certainly has the right to modify plea agreements as the cases progress. In other words, the remedy sought I don't have the authority to grant such a remedy. He got sixteen and a half with a five and a half period of parole disqualifier. He agreed to that[,] and now he wants to go back and take the ten with a five. That I can't do. I don't have the authority to do it.
We affirm the trial court's denial of defendant's PCR petition substantially for the reasons expressed by the trial court in its oral decision of October 20, 2008. See Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:9-3 (2011) (providing that the court is without authority to enter a plea based on a lapsed or withdrawn offer).
Moreover, even if we were to read defendant's petition as having requested to vacate his guilty pleas rather than to be sentenced to a lesser term of incarceration, we would determine the petition meritless. R. 2:11-3(e)(2). A review of the transcript of the plea proceedings of December 12, 2005, discloses that although defendant was fully aware that his counsel had filed a motion for a Wade hearing and the State had increased its sentencing recommendation, defendant, nonetheless, voluntarily chose to enter guilty pleas to the two CDS offenses and the weapon offense. Defendant could have chosen not to plead, and to have gone to trial on the charges at that time. However, defendant continued to negotiate the plea agreement with the prosecutor and voluntarily entered his pleas knowing the recommended sentences. What is more, notwithstanding the State's recommendation, the court sentenced defendant to a six-month lesser term of incarceration.
We next address defendant's petition challenging his conviction and sentence imposed under Indictment No. 06-05-0664. On May 16, 2006, a grand jury charged defendant with, among other things, second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two). On November 13, 2006, defendant entered a guilty plea on the aggravated assault charge. In exchange for his plea, the State agreed to dismiss the remaining charges.
The court sentenced defendant to a seven-year term of imprisonment with an 85% period of parole ineligibility, to run concurrent with the sentences defendant was then serving on Indictment No. 05-03-0355. The court also awarded defendant sixty-two days of jail-time credit and 380 days of gap-time credit.
In sentencing defendant, the following colloquy occurred among the court, defense counsel, and defendant concerning defendant's jail-time and gap-time credits:
[DEFENSE COUNSEL]: Just so the record is clear, [defendant], Judge Rea can not give you credits for that case.
THE DEFENDANT: No, no, I'm not saying for the case. I'm saying since I been incarcerated, since November 29.
THE COURT: He wants day-for-day credits.
[DEFENSE COUNSEL]: He wants day-for-day credits.
THE DEFENDANT: That's what I was under the impression when I spoke to you because I got 15 months. So, that 15 months goes to the back. So, I got to do five years, eleven months.
THE COURT: Mine is 62 days.
THE DEFENDANT: So, I'm going to do almost 7 years and some change, minus 62 days. THE COURT: Well, that's the sentence. Do you have any application?
THE DEFENDANT: I want to withdraw my plea. I want to withdraw my plea.
THE COURT: File the motion.
THE DEFENDANT: I want to withdraw my plea. . . . I want to go to trial. No, I want to go to trial. It's bad enough. I want to go to trial.
The court informed defendant that if he wished to withdraw his plea he had to file a motion because the court had already imposed sentence.
The trial court ordered that the sentence imposed on Indictment No. 06-05-0644 run concurrent to the sentences imposed on Indictment No. 05-03-0355. As such, the sentences merged and will be satisfied by the sentence imposed under Indictment No. 05-03-0355. See N.J.S.A. 2C:44-5e(1) (providing that "[w]hen terms of imprisonment run 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 & Verniero, Current N.J. Court Rules, comment on 1.1 R. 3-21.8 (2011). 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-time 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), a 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-time 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 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 380 days of gap-time credit applied against the base term on his sentence. Rather, defendant contends that trial counsel misrepresented to him that all of those credits would be applied against the period of parole ineligibility, thereby reducing his overall period of parole ineligibility. Defendant asserts that had he known those credits would not be used to reduce the period of parole ineligibility he would not have pled guilty to the 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 & Verniero, Current N.J. Court Rules, comment 1.4.1 on R. 3:9-2 (2011). 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. 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 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); 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).
The trial court did not address defendant's argument that his attorney had misrepresented the amount of jail-time credits he was going to receive. Indeed, as we understand defendant's argument, counsel represented that all credits defendant was to receive would be applied against the period of parole ineligibility. Defendant contends that he would not have pled guilty had he been informed otherwise. Because the trial court did not address the issue and the record does not contain sufficient information to flesh out what defendant's attorney advised him, we reverse and remand to conduct an evidentiary hearing on defendant's claim that he received ineffective assistance of counsel at the time he entered the plea. Additionally, we note that the judgment of conviction does not indicate that the sentence includes a three-year term of parole supervision upon release as mandated by NERA. On remand, the court shall enter a corrected judgment of conviction.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion on Indictment No. 06-05-0664. We do not retain jurisdiction.