On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 00-08-0602.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Messano.
Defendant Terrell Forth appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. In a single point, defendant argues the following:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS, THAT COUNSEL INDUCED DEFENDANT TO ENTER INVOLUNTARY GUILTY PLEAS We have considered this contention in light of the record and applicable legal standards. We affirm substantially for the reasons expressed in the written opinion of Judge John A. Almeida.
On January 22, 2001, before Judge Almeida, defendant pled guilty to one count of Burlington County Indictment No. 00-08-0602 charging him with third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Pursuant to the plea bargain, defendant was sentenced to a four-year term of imprisonment, concurrent to sentences he was already serving for convictions emanating from other counties. The State dismissed the remaining counts of the indictment.
Two additional indictments were subsequently returned by the Burlington County grand jury in 2004. On October 24, 2005, defendant pled guilty before a different judge to a single count of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), in each indictment. In return, the State agreed to recommend concurrent four-year sentences to be served concurrently with a thirteen-year term defendant was serving in Federal custody. The judge imposed sentence in accordance with the terms of theplea bargain on October 24, 2005, and the State dismissed the remaining counts of the indictments.
Defendant did not file any appeal, but, on April 2, 2009, he filed a pro se PCR petition regarding his 2001 conviction on the weapons offense. He alleged trial counsel provided ineffective assistance, specifically, that his attorney "fail[ed] to correctly advise [him] of [the] elements of the offense and coerced [him] [in]to plead[ing] guilty." In a subsequent certification, defendant claimed trial counsel "coerced [him] into accepting the plea agreement because [he] repeatedly told [defendant] that [defendant] stood no chance at trial even though he agreed with [defendant] that the traffic stop that preceded the arrest was an illegal stop." Defense counsel "frightened" defendant by advising that he faced "20-30 years" on the charges, and defendant contended that his guilty plea was "not under the terms that [he] believed [he] agreed to and accepted."
Defendant also claimed that he attempted to file his PCR petition "within the normal time . . . frame" but was unsuccessful because correspondence he sent to the court and the public defender's office was never received. Defendant asked that his convictions be vacated, or, alternatively, that he be granted an evidentiary hearing.*fn1
On February 19, 2010, a hearing was held on defendant's PCR petition before Judge Almeida. Based upon his recent conversation with defendant, PCR counsel waived defendant's appearance at the hearing. Counsel argued that trial counsel rendered ineffective assistance by providing defendant with "misinformation as to whether or not to challenge the initial stop to suppress the evidence and ultimately it goes to whether or not [defendant] can make a knowing and voluntary plea."
In a thorough written decision that accompanied his order denying defendant's petition, Judge Almeida concluded that based upon "several attempts to file his petition . . . through correspondence [with] the Office of the Public Defender," defendant "ha[d] demonstrated excusable neglect" in not filing his petition within the five-year time bar contained in Rule 3:22-12(a).*fn2 Judge Almeida noted that the grant of an evidentiary hearing was discretionary. See, e.g., State v. Preciose, 129 N.J. 451, 462 (1992) (observing that while a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required," it remains within the court's discretion whether such a hearing is necessary). In this case, the judge concluded that defendant had failed to establish a prima facie case for relief so as to warrant such a hearing. See, e.g., State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) ("Once a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different.'") (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). Judge Almeida then considered the merits of defendant's claim of ineffective assistance of counsel applying the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v.Fritz, 105 N.J. 42, 58 (1987). To establish a claim of ineffective assistance of counsel, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
"[T]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) '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.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 ...