April 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES BURGESS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 00-10-1977.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2011
Before Judges Lisa and Reisner.
Defendant James Burgess appeals from a July 21, 2009 order denying his second petition for post-conviction relief (PCR). We affirm.
In 2003, as he was about to stand trial for shooting at two police officers, defendant entered into a plea agreement pursuant to which he pled guilty to second-degree aggravated assault and weapons possession. Consistent with the terms of the plea agreement, defendant was sentenced to nine years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, plus three years of parole supervision to be served following his prison term. N.J.S.A. 2C:43-7.2(c). The nine- year sentence was imposed concurrent to a sentence that defendant was already serving for an earlier conviction.
Defendant appealed, claiming that the sentence was excessive, but we affirmed the sentence on an Excessive Sentencing calendar. See R. 2:9-11. State v. Burgess, Docket No. A-5454- 02 (App. Div. Jan. 7, 2004), certif. denied, 180 N.J. 457 (2004).
Defendant filed his first PCR petition on September 21, 2004. In that petition, defendant contended that he entered into the plea bargain under a mistaken understanding about the impact of his gap-time credits on the sentence he would receive.
He alleged that his trial counsel mistakenly informed him that approximately 700 days of gap-time credit, to which defendant was entitled, would be applied to reduce the three-year period of parole supervision. Defendant argued that he would not have pled guilty if he had known that the gap-time credits could not be applied to the parole supervision period. Judge John A. O'Shaughnessy rejected that argument and denied the petition. We affirmed. State v. Burgess, Docket No. A-1337-05 (App. Div. March 29, 2007). In our opinion, we found no basis to conclude that defendant would have rejected the plea agreement, regardless of the impact of his gap time on the sentence:
The PCR judge found defendant was appropriately advised of the effect of NERA on his parole opportunities. We need not reach that issue, although we note the State's concession that there was "confusion" attending the explanation of the effect of NERA on defendant's parole. We need not reach the issue because we agree with the PCR judge that defendant's failure to demonstrate he would not have entered the plea had he been given the correct information is fatal to his claim of ineffective assistance of counsel.
The record does not contain the PCR application and we have nothing before us other than a statement in defendant's brief that he would have insisted on a trial had he been advised that he would be required to serve a three-year probationary period after release from custody. The record is quite the contrary. Defendant was thirty-two when he pled guilty. He was charged with being involved in shooting at two Jersey City police officers and he had an extensive criminal record, including five previous indictable convictions. His criminal record would have rendered him eligible for an extended term, N.J.S.A. 2C:44-3, and the seriousness of the offense placed him at risk of a sentence at the high end of the permissible range. Moreover, since the charges involved crimes with multiple potential victims, consecutive sentences were a distinct possibility. See State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
The sentencing judge commented on the likely consequences of a conviction: "[Y]our lawyer has done a great service to you and you should be thanking her for the work she has done for you and saving you from going to trial and getting a sentence that would make you a very old man when you left state prison." Defendant has made no attempt to explain what would impel him to reject so favorable a sentence recommendation. We agree with the PCR judge that defendant failed to make a prima facie case of entitlement to relief as a result of ineffective assistance of counsel.
In 2009, more than six years after his conviction, defendant filed a second PCR raising the same gap-time issue he raised unsuccessfully in the first PCR. Before the oral argument on the petition, the State offered to resolve the matter by consenting to a six-month reduction in defendant's sentence. Defendant refused that offer.
[Id. at 8-9.]
In his oral opinion of July 21, 2009, Judge Kracov, who had also taken defendant's plea and imposed the sentence, rejected the second PCR as barred by Rules 3:22-4 and -5. The judge reasoned that defendant was raising the same arguments that he asserted in his first PCR petition, and that we had already considered those arguments and rejected them in our 2007 opinion. He also found the petition was untimely, because it was filed more than five years after defendant's conviction and did not raise any new issues that could not have been raised earlier. R. 3:21-12.
Finally, Judge Kracov reasoned that even if he considered the merits of the petition, defendant did not satisfy the legal standard to withdraw a guilty plea. Judge Kracov accepted that defendant was misinformed about the impact his gap-time credits would have on his sentence. However, he also found that defendant did not present a colorable claim of innocence, or any other evidence that it would have been rational for him to reject the plea agreement and go to trial. See State v. Slater, 198 N.J. 145 (2009); State v. Johnson, 182 N.J. 232 (2005); State v. DiFrisco 137 N.J. 434 (1994).
On this appeal, defendant raises the following points for our consideration:
POINT I: THE COURT MISAPPLIED THE PROCEDURAL BARS OF RULE 3:22-4, RULE 3:22-5, AND RULE 3:22-12 IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR PLEA PROCEEDING WAS VIOLATED.
POINT II: SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
POINT III: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF
Having reviewed the record, we find that these contentions are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
To present a prima facie case of ineffective assistance of counsel in regard to a plea agreement, defendant must not only establish that his counsel misinformed him about the consequences of the plea, but "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." DiFrisco, supra, 137 N.J. at 457; see Johnson, supra, 182 N.J. at 241-42; State v. McQuaid, 147 N.J. 464, 487 (1997). Defendant's second PCR was no more convincing on that issue than his first PCR. We affirm, substantially for the reasons stated in Judge Kracov's well-reasoned oral opinion.
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