September 30, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CLARENCE MELVIN, A/K/A MASTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 03-11-2185, 04-08-1964.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Reisner and Hayden.
Defendant Clarence Melvin appeals from an order dated October 24, 2008 denying his petition for post-conviction relief (PCR). Having considered his contentions in light of the record and the applicable law, we affirm.
On June 10, 2004, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(3). A Brimage worksheet was completed with this indictment.*fn1 In exchange for this plea, the State agreed to recommend an extended jail term of eight years with a forty-two-month period of parole ineligibility and to dismiss another count of the indictment and a disorderly persons charge. Shortly thereafter, defendant was arrested and indicted for additional drug charges. On October 26, 2004, defendant pled guilty to second-degree distribution of CDS, N.J.S.A. 2C:35-5b(2), and second-degree conspiracy, N.J.S.A. 2C:5-2 and 2C:35-5b. The State agreed to recommend imposition of an eight-year prison term with a forty-eight-month period of parole ineligibility and to dismiss other counts of the indictment.
On January 14, 2005, Judge Anthony Mellaci presided over defendant's sentencing hearing. Based on defendant's prior record, Judge Mellaci granted the State's motion for an extended term. The judge then sentenced defendant, pursuant to the terms of both plea agreements, to eight years in prison with forty-two months of parole ineligibility on the first indictment and an additional eight years in prison with forty-eight months of parole ineligibility on the second indictment to be served consecutive to the first sentence.
Defendant appealed on the basis of an excessive sentence. When the appeal was scheduled on our Excessive Sentencing Calendar on June 1, 2006, the prosecutor and the defense attorney reached an agreement to remand the matter for re-sentencing due to an error in the Brimage calculations, and they drafted a consent order reflecting the agreement. Accordingly, this court remanded for modification pursuant to the consent order as follows:
The 42-month parole disqualifier shall be reduced to a term between 30 and 36 months in accordance with the Pre-Indictment Cell of Table 2, Row C, Column V, of the Brimage Guidelines. The precise length of the minimum term shall be determined by the prosecutor in accordance with the provisions and requirements of the Brimage guidelines.
If the prosecutor determines that a minimum term above 30-months is required, he shall state his reasons therefore on the record.
Defendant appeared before Judge Mellaci for re-sentencing on September 6, 2006. Prior to the hearing, the State had submitted a letter to the judge stating that a period of parole ineligibility of more than thirty months should be imposed because the original calculation of forty-two months of ineligibility was correct. At the hearing defense counsel stated that the correct parole ineligibility periods under Brimage were thirty months pre-indictment, thirty-six months initial post-indictment and thirty-nine months final post-indictment. She also acknowledged that defendant pled in the final post-indictment period but urged the court to adopt thirty-six months pursuant to the consent order. Defendant addressed the trial judge, stating that he understood the reason the term was thirty-six months but requested the court to give him the thirty-month term.
Judge Mellaci acknowledged receiving the State's letter giving its position on the Brimage calculations and incorporated it into the record. The judge determined from the record that the thirty-six month term of parole ineligibility was applicable and sentenced defendant to eight years with a thirty-six-month period of parole ineligibility. At this hearing the judge advised defendant of his right to appeal his sentence. Nevertheless, defendant failed to file an appeal.
On December 17, 2007, defendant filed a petition for PCR and subsequently was appointed counsel. Defendant argued that his sentence was illegal because the State had not stated its reasons on the record for requiring a period of parole ineligibility above thirty months. Defendant also argued that the sentence was illegal due to the court double-counting certain factors, but this issue is not before us on this appeal. The State argued that defendant's claim was not eligible to be heard through a PCR petition under Rule 3:22-2(c).
After the parties filed briefs, Judge Mellaci held a hearing on October 24, 2008, for argument on the petition. Judge Mellaci first found that defendant could have taken a direct appeal on the sentence and was therefore procedurally barred from filing a PCR petition. The judge reasoned that, as defendant's sentence fell within the accepted statutory range, it was not illegal. To the extent that defendant was arguing that judicial abuse of discretion made the sentence excessive, the judge pointed out, it was a subject for direct appeal, not PCR.
Notwithstanding Judge Mellaci's finding that the PCR was time-barred, the judge then addressed and decided the merits of defendant's claim of an illegal sentence. Based upon the re-sentencing hearing record, the judge found defendant's premise that the State had not put its position on the record was factually incorrect. In particular, the judge determined that the State had fully complied with the consent order by writing a letter advocating forty-two months as the correct term, which the judge acknowledged receiving and considering on the record.
Defendant appeals the dismissal of the PCR petition, raising the following arguments:
POINT I. THERE WAS NO PROCEDURAL BAR TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THE TRIAL COURT FAILED TO COMPLY WITH THE APPELLATE DIVISION'S REMAND ORDER BY REQUIRING THE STATE TO JUSTIFY A THIRTY-SIX MONTH PAROLE DISQUALIFIER ON THE RECORD, THUS MAKING THE SENTENCE IMPOSED FOLLOWING THE REMAND AN ILLEGAL SENTENCE. POINT II. DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT THAT IT ORDER THE OFFICE OF THE PUBLIC DEFENDER TO REQUIRE PCR COUNSEL TO FULFILL HIS OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL BY BRIEFING, ARGUING, AND CONDUCTING AN EVIDENTIARY HEARING, REGARDING REMAND COUNSEL'S FAILURE TO EFFECTIVELY REPRESENT HER CLIENT AT THE REMAND HEARING (NOT RAISED BELOW).
We have carefully considered these arguments and the applicable law, and we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
In this appeal defendant seeks to characterize his PCR petition as one to correct an illegal sentence so as to bring his petition within the ambit of Rule 3:22-12, which provided that a petition to correct an illegal sentence may be filed at any time.*fn2 We must reject this flawed characterization. "[A]n illegal sentence is one that 'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011)(quoting State v. Murray, 162 N.J. 240, 247 (2000)). On the other hand, "excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for post-conviction relief and can only be raised on direct appeal from the conviction." Id. at 46 (citing State v. Flores, 228 N.J. Super. 586, 592 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989)). Consequently, a challenge to the excessiveness of the parole eligibility period of a legal sentence is cognizable only on direct appeal. We agree with the PCR judge that defendant, having failed to raise the issue on direct appeal, cannot be entitled to PCR by simply claiming the sentence was illegal. We also agree with his findings that the State had fully complied with the consent order's requirement to put its position on the record.
Additionally, for the first time defendant raises the claim that his PCR counsel provided ineffective assistance of counsel by failing to raise an ineffective assistance of counsel claim against the re-sentencing attorney. We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, defendant must first show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Next, defendant must show that his attorney's deficient performance prejudiced his defense. Ibid.
To meet the first prong of the Strickland test a defendant must show that his attorney failed to provide representation that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, the defendant must show that "'there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). This exacting standard requires that the "error committed must be so serious as to undermine the court's confidence in the . . . result reached." Ibid.
Here defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel as to either his PCR counsel or his re-sentencing attorney. The record shows that his re-sentencing attorney argued against the State's position that the correct term was forty-two months and acknowledged that the correct Brimage term was thirty-six months of parole ineligibility. Defendant does not challenge the correctness of this calculation. His sole claim of ineffective assistance was that his counsel did not request that the judge utilize the thirty-month term, although defendant was not entitled to it under the Brimage guidelines. We do not agree that this failure to argue for a sentence for which defendant did not qualify under Brimage is a deviation from the range of competence demanded of criminal attorneys. Thus, defendant has not satisfied the first prong of the Strickland test.
Moreover, defendant has also failed to provide evidence that, but for the inaction of re-sentencing counsel, defendant would have prevailed in his request to have an undeniably inapplicable term of parole ineligibility applied. The judge stated that he had determined that thirty-six months was the correct term under Brimage. Additionally, the defendant addressed the sentencing judge and acknowledged understanding the reason for the thirty-six month term but asked the judge to consider reducing the term to thirty months. Defendant has not produced any evidence to indicate that the judge, if asked by defense counsel, would have ignored the correct Brimage term and used a term for which defendant did not qualify. Hence, defendant has also not proven the second prong of the Strickland test. We thus reject defendant's argument that re-sentencing counsel provided ineffective assistance to defendant.
Accordingly, we also find that defendant has not demonstrated that PCR counsel's performance was deficient for not bringing an ineffective assistance of counsel claim that does not meet the Strickland standard. In addition, defendant has failed to present any evidence that PCR counsel's failure to raise this claim that entirely lacked merit had any effect on the PCR result. Again, the record is devoid of any evidence suggesting that, but for counsel's inaction, the judge would have granted the relief requested. Having failed to demonstrate a prima facie case of ineffective assistance of counsel, defendant was not entitled to a plenary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).