July 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DERRICK T. LENNON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-03-0379.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Ashrafi and Nugent.
Defendant, Derrick Lennon, appeals from the April 28, 2009 order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
On March 21, 2002, a Burlington County grand jury indicted defendant and co-defendant, Dolores Stanickyj, on four counts arising out of a carjacking on December 31, 2001. On April 4, 2002, a Camden County grand jury indicted defendant and Stanickyj on six counts arising out of the robbery of a woman on January 1, 2002. According to the plea hearings and presentence reports, on the night of December 31, 2001, defendant and Stanickyj approached a woman at a WaWa store and asked for a ride to a nearby Burlington County motel. The woman agreed. When they arrived at the motel, Stanickyj pulled the woman into the back seat and took items from her purse as defendant drove away. Shortly thereafter, they released the woman at a Dollar Store, drove to a Dunkin Donuts in Camden County, and accosted a second victim. Stanickyj grabbed the victim's purse and pulled her toward the car, and defendant threatened to hit her with a hammer if she did not release the purse. The victim complied. Defendant drove away but was arrested a short time later in Camden County. He remained in jail until sentencing.
Defense counsel did not move to consolidate the Burlington and Camden County indictments. On October 15, 2002, defendant pleaded guilty to count one of the Camden County indictment charging him with first degree robbery. On December 6, 2002,*fn1 he was sentenced in accordance with his plea agreement to a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant received a credit of 339 days for the time he was in custody before sentencing. The sentencing judge also imposed appropriate fines and penalties.
On April 21, 2003, defendant pleaded guilty to count one of the Burlington County indictment charging him with first degree carjacking, in exchange for dismissal of the remaining counts and a seventeen-year term of imprisonment with an eighty-five percent period of parole ineligibility under NERA. During the plea hearing, the judge explained the consequences of NERA and asked defendant if he understood them. Specifically, the judge explained:
THE COURT: Now, because of the nature of this charge, the carjacking, it's what we call a No Early Release Act plea, so your offer is based on that so the offer is seventeen years, but you have to do at least eighty-five percent of it before you would be considered for parole. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And that eighty-five percent turns out to be fourteen years, five months, fourteen days. Do you understand that?
On May 9, 2003, the court sentenced defendant in accordance with the plea agreement and imposed appropriate fines and penalties. The sentence was to be served concurrently with the Camden County sentence. Defendant received 154 days of gap time credit under N.J.S.A. 2C:44-5b(2) for the time he was in custody between the December 6, 2002 Camden County sentencing and the May 9, 2003 Burlington County sentencing; however, there was some confusion about the credits defendant was to receive:
MR. LUCIANO [Prosecutor]: Yeah. I was just going to say that there's a 154 days of jail credit, as noted on the report.
THE COURT: Okay. And that's the question I was going to ask you because now this sentence, whatever sentence I impose, is a concurrent sentence, so I would think that he would get some benefit from the concurrency, if that's a word.
MR. LUCIANO: Right. But you're saying there are going to be additional days in terms of the jail credit?
THE COURT: There may be.
MR. LUCIANO: If that's the case, Judge, that's fine.
THE COURT: Okay. I'm not quite sure what they are, but I think once you serve - sentence somebody concurrent, they get the benefit of whatever has been served.
MR. LUCIANO: And I think that's appropriate . . . .
When defense counsel expressed his opinion that the gap time credits were wrong and needed to be "reconfigured," the court suggested that defense counsel confer with the probation officer who prepared the report. The court agreed to give defendant "every day of credit he's entitled to have." There was no discussion about the gap time credits reducing the NERA period of parole ineligibility.
Defendant appealed from the judgments of conviction on July 14, 2003, claiming (1) the sentences were excessive, (2) the "gap time" should have been credited as "straight jail credits," and (3) the Camden County sentence was excessive compared to Stanickyj's sentence.*fn2 The judgments of conviction and sentences were affirmed on direct appeal on an excessive sentencing calendar and defendant's petition for certification as to the Burlington County sentence was denied, 182 N.J. 141 (2004).
On February 27, 2005, defendant filed a pro se PCR petition that was denied without a hearing on March 9, 2005. Defendant filed an appellate motion to proceed as an indigent and pro se on appeal. The motion was granted on June 17, 2005, and the matter was remanded to the trial court for a waiver of counsel hearing. The trial court appointed counsel in February 2006, but defendant's mother retained private counsel. The PCR petition was dismissed for lack of prosecution on December 3, 2007. Defendant's subsequent pro se motion to reinstate the petition was granted. Defendant and counsel filed supplemental pleadings, and the PCR court conducted oral argument on March 27, 2009.
Defendant contended that trial and appellate counsel were ineffective for failing to address during the Burlington County sentencing proceeding an illegal juvenile sentence; failing to challenge the disparity between his sentence and Stanickyj's sentence; failing to appropriately argue mitigating factors that could have reduced defendant's sentence; misinforming defendant about jail and gap time credits; and not negotiating gap time credits. Neither defendant nor his attorney raised the issue that the Camden and Burlington County indictments should have been consolidated.
The PCR court denied defendant's petition in an oral opinion following argument on March 27, 2009, finding: (1) defendant was barred from raising contentions about the length of his sentence and gap time credits because he had raised those issues on direct appeal; (2) defendant did not demonstrate that his arguments about his juvenile sentence or mitigating factors would have changed the outcome of his sentence; and (3) the disparity between his sentence and Stanickyj's sentence was justified by the significant difference in their criminal records. This appeal followed. Defendant raises the following issues:
THE DENIAL OF MR. LENNON'S PETITION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE IN PLEADING GUILTY TO THE OFFENSE MR. LENNON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE LEGAL COUNSEL
A. THE LEGAL STANDARD APPLICABLE TO PCR CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL
B. MR. LENNON'S COUNSEL WAS CONSTITUTIONALLY DEFICIENT INSOFAR AS HE FAILED TO SEEK CONSOLIDATION OF THE BURLINGTON COUNTY AND CAMDEN COUNTY INDICTMENTS
1. DEFENSE COUNSEL WAS UNDER A DUTY TO SEEK CONSOLIDATION OF THE BURLINGTON COUNTY AND CAMDEN COUNTY INDICTMENTS
2. CONSOLIDATION WAS APPROPRIATE
C. THE SECOND PRONG OF THE STRICKLAND STANDARD IS SATISFIED BECAUSE THE FAILURE TO SEEK CONSOLIDATION RESULTED IN THE LOSS OF STRAIGHT JAIL CREDITS IN CONNECTION WITH THE BURLINGTON COUNTY SENTENCING
D. IN A CONSOLIDATED PROCEEDING, THE COURT WOULD HAVE HAD THE DISCRETION TO AWARD STRAIGHT JAIL CREDITS
E. DEFENSE COUNSEL FAILED TO PROVIDE CONSTITUTIONALLY EFFECTIVE REPRESENTATION BY FAILING TO ADVISE DEFENDANT OF THE "BOGUS" NATURE OF HIS GAP TIME CREDIT
F. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO ADVISE THE COURT OF THE FACTS UNDERLYING MR. LENNON'S PREVIOUS CONVICTIONS MILITATING AGAINST THEIR USE AS AN AGGRAVATING FACTOR IN MR. LENNON'S SENTENCING
G. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO SUFFICIENTLY ADDRESS THE DISPARITY OF MR. LENNON'S SENTENCE AS COMPARED TO CO-DEFENDANT DOLORES STANICKYJ Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). The defective performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'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.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
Defendant first contends that trial counsel was ineffective because he did not move to consolidate the indictments. We decline to address this and the related arguments because defendant failed to present them before the PCR court. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (observing that an appellate court will decline to consider an issue not raised in the trial court when the opportunity to do so existed).
Defendant next contends that trial counsel was ineffective for failing to advise him that gap time credit would have no effect on the length of time he would serve in jail before becoming eligible for parole. Defendant argues that his sentence should be vacated and remanded so that his gap time credits can be applied as straight jail credits.
Gap time credits accumulate "[w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody[.]" N.J.S.A. 2C:44-5b. In such cases, "the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served." N.J.S.A. 2C:44-5b(2). Gap time credits do not reduce NERA periods of parole ineligibility. See Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994); Richardson v. Nickolopoulos, 110 N.J. 241, 254-55 (1988).
Defendant's argument is flawed for several reasons. Defendant has not demonstrated "'that there is a reasonable probability that, but for counsel's errors, [he] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210). Here, defendant does not contend that his guilty plea should be vacated and that he should be permitted to go to trial. Instead, he argues that his sentence should be vacated and he should be re-sentenced because he misunderstood how gap time credits would be applied. Defendant cites no authority for the proposition that he is entitled to be re-sentenced because of his misunderstanding about the application of gap time or jail credits.
Additionally, when defendant entered into his plea agreement, the court explicitly informed him of the amount of time he would serve before becoming eligible for parole. Defendant's voluntary entry into the plea agreement could not have been affected by any subsequent confusion he or his attorney may have had about the application of gap time credits, and he has not demonstrated that he was due either gap time or jail credits in excess of the 154 days of gap time.
Finally, the trial court properly rejected defendant's argument that his gap time credits should have been applied as straight jail credits, because that issue was raised, argued, and rejected on defendant's direct appeal. "A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." R. 3:22-5.
We reject defendant's remaining arguments - that trial counsel failed to adequately argue the facts of defendant's prior convictions, and failed to adequately argue the disparity between his sentence and Stanickyj's sentence - substantially for the reasons explained by the trial court. The arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).