On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-06-0562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2012 --
Before Judges Fuentes, J. N. Harris and Koblitz.
Defendant Reginald Council appeals from the December 1, 2009 opinion*fn1 denying his petition for post-conviction relief (PCR). He contends he should have been afforded the opportunity of a hearing to demonstrate that his attorney misinformed him that he would receive approximately one year of jail credit, Rule 3:21-8, when in fact he received gap time credit, N.J.S.A. 2C:44-5(b)(2). After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for a plenary hearing.
On July 25, 2005, defendant's five-year probationary drug court sentence was revoked as a result of his pleading guilty to a violation of probation (VOP) stemming from an arrest for serious drug charges on January 21, 2005.*fn2 He claims he purposefully agreed to bail revocation on the new charges when he pled guilty to the VOP, and posted bail again on the new charges when he was released from his VOP sentence on July 20, 2006. Defendant claims that his attorney told him that if he pled guilty to the VOP, he would receive jail credit on both the new charge and the VOP if he consented to bail revocation.
He pled guilty on March 6, 2007 to count two of Mercer County Indictment No. 05-06-0562, charging first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1), pursuant to a plea agreement in which the State agreed not to seek a mandatory extended term and to limit his custodial sentence to ten years with a four-and-one-half-year period of parole ineligibility. At sentencing on August 31, 2007, his attorney asked for 361 days of jail credit representing the time defendant spent in custody after his bail was revoked and before he was released on the VOP sentence and again posted bail. The sentencing judge gave him the time as gap time, allowing defense counsel to submit a brief to convince her that it should be awarded as jail credit. Counsel did not submit a brief.
Defendant filed a PCR from Southern State Correctional Facility on July 7, 2008, less than a year after he was sentenced. The application was referred to the Office of the Public Defender and the matter moved to Burlington County. In the PCR judge's written opinion, she noted that the State disagreed that defendant's bail had been revoked and re-posted.*fn3
The judge found it irrelevant whether or not defendant had posted bail twice. Although she determined that defendant's application for jail credit and his application to withdraw his guilty plea were procedurally barred because he did not file a direct appeal, she nonetheless considered and rejected those applications on their merits. The PCR judge found that defendant had "not established a prima facie case in support of his claims and thus no evidentiary hearing will be granted."
On appeal, defendant's sole contention is that the PCR court erred in denying his request for an evidentiary hearing to advance his claim of ineffective assistance of counsel. He argues:
THE LOWER COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING TO FULLY EXPLORE HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
As a threshold matter, the legal conclusions of the PCR court are afforded no deference. State v. Harris, 181 N.J. 391, 415-16 (2004) (citing Toll Bros. Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)), cert. denied, Harris v. New Jersey, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). As for mixed questions of law and fact, we defer to the supported factual findings of the PCR court, "but [we] review de novo the lower court's application of any legal rules to such factual findings." Id. at 416 (citing State v. Marshall, 148 N.J. 89, 185 (1997)).
New Jersey's petition for PCR is analogous to the federal writ of habeas corpus, serving as a safeguard against unjust convictions. State v. Afandor, 151 N.J. 41, 49 (1997). Our rules of court provide that a petition for PCR is cognizable if proffered on the grounds of a:
Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution ...