August 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH FOLEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-0787.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2011
Before Judges Fuentes and Ashrafi.
Defendant Joseph Foley appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
A Middlesex County grand jury indicted defendant on May 28, 2004, charging him with committing second degree robbery, N.J.S.A. 2C:15-1. Defendant was tried before a jury over a period of three days, starting on February 7 and ending on February 9, 2005. The jury convicted defendant on the single count of the indictment and the court sentenced him on April 28, 2005 to a term of seven years, with an eighty-five percent period of parole ineligibility and three years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also awarded defendant 402 days of jail time credits pursuant to Rule 3:21-8.
On direct appeal, we affirmed defendant's conviction and sentence in an unpublished opinion. State v. Joseph Foley, Docket No. A-5922-04 (App. Div. December 8, 2006). In lieu of reciting at length the facts that led to defendant's conviction, we incorporate by reference the recitation of those facts reflected in our opinion. Id., slip op. at 2-4.
On April 17, 2007, defendant filed the PCR petition under review here, claiming ineffective assistance of trial counsel. The attorney retained by defendant to represent him in the prosecution of this petition submitted a letter-brief in which he claimed defendant "was displeased with the services" he received from the public defender assigned to represent him at trial. The public defender initially assigned to represent defendant was transferred to the Union County Office.
Based on a review of trial counsel's "time sheets," PCR counsel claimed trial counsel met with defendant in the Middlesex County jail only one time to prepare for the case. PCR counsel argued:
It is very difficult to prepare for any case if you only meet with your client one time to discuss trial strategy and the course of the trial. It is important to emphasize that [trial counsel] took the case over only thirty days before the trial was to start.
This raises a prima facie case that the defendant received ineffective counsel.
PCR counsel also argued that the sentence imposed by the court, and affirmed by this court on direct appeal, was "illegal" and amounted to a "fundamental injustice," thus permitting the PCR court to find grounds for not enforcing the bar against collateral challenges under Rule 3:22-4. PCR counsel also moved for a reduction in sentence under Rule 3:21-10.
By order dated December 7, 2007, the court denied defendant's petition. The form of order used by the court indicated that the reasons for the decision were expressed orally on the record. On defendant's timely appeal, we remanded for the court to reconstruct the record because the verbatim transcripts of the December 7, 2007 proceedings "had been lost, destroyed, or [were] otherwise unavailable."
In accordance with our remand order, Judge Barbara Stolte *fn1
reconvened the PCR hearing on September 29, 2008, and with defendant present, the attorneys again summarized their legal positions. Judge Stolte thereafter again placed her findings and conclusions of law on the record in support of denying defendant's PCR petition.
With respect to defendant's claim of ineffective assistance of trial counsel, after articulating the correct standard for assessing the merits of such a claim, Judge Stolte found that defendant "did not present any evidence indicating that the trial could have come out differently had [trial counsel] done something differently." Judge Stolte also rejected defendant's claim that the sentence imposed was "illegal" under Rule 3:22-2(c).
Defendant now appeals raising the following arguments:
THE SENTENCE SHOULD BE REMANDED BECAUSE IT WAS DETERMINED BY REFERENCE TO THE PRESUMPTIVE SENTENCE, CONTRARY TO STATE V. NATALE. (Not Raised Below)
POINT TWO PURSUANT TO STATE V. WEBSTER, THE CONTENTIONS IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND PCR COUNSEL'S BRIEF IN SUPPORT OF THE PETITION ARE HEREBY INCORPORATED BY REFERENCE AS IF SET FORTH IN FULL HEREIN.
We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Applying this standard to the issues before us, we reject defendant's claim of ineffective assistance of trial counsel substantially for the reasons expressed by Judge Stolte in her oral decision delivered from the bench on September 29, 2008. We also concur with and adopt Judge Stolte's findings and conclusions of law with respect to defendant's argument predicated on Rule 3:22-2 and Rule 3:2-10. Finally, although defendant did not question the legality of his sentence before Judge Stolte based on State v. Natale, 184 N.J. 458 (2008), we agree with the State's position, as stated in its appellate brief, that Natale only applies to cases in which the sentence imposed exceeded the former presumptive sentence. Id. 466. Because defendant received the presumptive sentence of seven years for this second degree offense, Natale is not implicated.