July 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
REGINALD COUNCIL, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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On July 25, 2005, defendant's five-year probationary drug court sentence was revoked as a result of his pleading guilty to a violation of probation (VOP) stemming from an arrest for serious drug charges on January 21, 2005.*fn2 He claims he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2007, his attorney asked for 361 days of jail credit representing the time defendant spent in custody after his bail was revoked and before he was released on the VOP sentence and again posted bail.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 or law of the State of New Jersey;
Defendant has the burden to demonstrate the right to relief by a preponderance of the evidence. State v. Mitchell, 126 N.J. 565, 579 (1992).
In State v. Preciose, 129 N.J. 451, 459 (1992), the New Jersey Supreme Court affirmed that "petitioners may be procedurally barred from relief under [PCR] if they could have, but did not, raise the claim in a prior proceeding." Defendant's sole claim is that his attorney misinformed him of the penal consequences of his guilty plea. This claim of ineffective assistance of counsel is appropriately raised for the first time in a PCR application. Id. at 460.
It is in the court's discretion whether or not to hold an evidentiary hearing. Id. at 462. Courts, generally, grant such a hearing when a PCR is grounded on ineffective assistance of counsel because "the facts often lie outside the trial record and because the attorney's testimony may be required." Ibid.
However, an evidentiary hearing need not be granted when a defendant fails to proffer a prima facie showing of ineffective assistance of counsel. Ibid.
Rule 3:22-10(b) further explicates this standard:
To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.
Moreover, Rule 3:22-10(e) provides in pertinent part that a court shall not grant an evidentiary hearing:
(1) if an evidentiary hearing will not aid the court's analysis of the defendant's entitlement to [PCR]; (2) if the defendant's allegations are too vague, conclusory or speculative; or (3) for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant had not demonstrated a reasonable likelihood of success as required by [Rule] 3:22-10(b).
Defendant's counsel who represented him at the plea and sentencing hearings submitted a certification in which he stated in part:
9. While I am sure that the issue of the credits came up prior to sentencing, I cannot state with certainty whether or not it was discussed prior to the entry of Reginald Council's guilty plea. If it was discussed, as I presume it was, I would have advised Mr. Council that the jail time and a gap time credit issues (sic) could go either way and, while we could argue for jail credit, I would want him to enter his plea assuming that they would be considered gap time credit. Given the uncertainty in how credits are applied, I would not want a client relying upon credits being classified as jail credits as opposed to gap time credit in deciding whether to accept a plea offer.
10. If I believed that Reginald Council was relying upon receiving jail credit for the 361 days, and that was a factor in his decision to plead guilty, I would have indicated so on the plea form in the section dealing with other promises or representations.
The PCR judge relied on this certification, and defendant's acknowledgement that he had received no other promises in exchange for his guilty plea, to find that defendant failed to establish a prima facie case. Judges should look to the record to determine whether it provides support for defendant's claim of incorrect legal advice. See State v. Santos, ___ N.J. ___ (2012) (citing State v. Gaitan, 209 N.J. 339, 381 (2012)) (in the context of incorrect advice regarding deportation consequences of pleading guilty).
The State claimed that defendant's bail on the new charge was not revoked when he was sentenced on the VOP. Neither party was given an opportunity to present proofs on this issue as the judge viewed it as irrelevant. We disagree.
If defendant is correct, it supports his contention that he was misinformed by his attorney. Defendant indicated that he agreed to a bail revocation and then re-posted the bail due to his attorney's incorrect advice with regard to jail credit. His attorney stated as much when arguing to the sentencing judge that defendant should receive jail credit for the 361 days he served on the VOP. Defense counsel argued:
[T]he gap time credits that are indicated on page one are for approximately a year, 361 days. These credits were gained by [defendant] when he was serving . . . the probation violation for [the prior drug charge], and at that time, his bail was revoked on this present charge. So, while he was serving the sentence, his bail was revoked, and I believe that if the bail was revoked, they shouldn't be termed as gap time credits, but instead jail time credits, because he was in there on a bail and he couldn't get out. Because of having a revoked bail status, the programs available to him within the institution, liberties that he would have that you don't get if you have a revoked bail, were all something that he was experiencing. So, to give him as gap time credits, all that does is take it off the back end of his sentence, and really on a sentence like this has no practical effect. So, essentially he spent a year in that situation with bail being revoked, suffering the institutional penalties, if you will, of having a revoked bail. So, I think they should be more adequately called jail time credits and he should be given jail time credits for that entire time period.
We also view defense counsel's representation in his certification that " credit issues could go either way" and his opinion that the way credits are applied is "uncertain" as further support for defendant's contention that his attorney did not accurately inform him of the penal consequences of his guilty plea. As the State, the judge and even defendant on appeal acknowledge, only gap time credit is appropriate under these circumstances.
Jail time credits are applicable only to confinement directly arising from a particular offense giving rise to the initial incarceration. See State v. Black, 153 N.J. 438, 456 (1998); see also State v. Harvey, 273 N.J. Super. 572, 575 (App. Div. 1994). This ensures that defendants never receive "double credit." Black, supra, 153 N.J. at 457 (citation omitted). Jail credit may not be awarded in satisfaction of a wholly unrelated charge. State v. Mercadante, 299 N.J. Super. 522, 529-30 (App. Div.), certif. denied, 150 N.J. 26 (1997).
Conversely, gap time credits are awarded as a means to reduce the maximum term imposed. State v. Carreker, 172 N.J. 100, 105 (2002). These credits "counteract any dilatory tactics" by a prosecutor in pursuing a second conviction after a defendant has been sentenced on one offense. Ibid. Gap time credits are statutorily provided for pursuant to N.J.S.A. 2C:44-5(b)(2), which in pertinent part provides:
When a defendant who has been previously 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 . . . 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.
We have held that gap time credit, unlike jail credit, is applied to the back end of a sentence. Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 428 n.5 (App. Div. 2001). Although at one time the concept of gap time credit was indeed unclear, State v. Guaman, 271 N.J. Super. 130, 134-35 (App. Div. 1994), by the time defendant pled guilty to the VOP in 2005, a criminal defense lawyer could reasonably be expected to inform his client under what circumstance incarceration would be counted as jail credit or gap time credit. Defendant has alleged "facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999); State v. DiFrisco, 137 N.J. 434, 457 (1994) (citations omitted) (indicating that defendant must show "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'").
Defendant claims he relied on his attorney's representation with regard to jail credit in entering a guilty plea. If, on remand, the PCR judge finds that counsel's performance was "substandard" in that regard and, "'that there is reasonable probability that, but for counsel's errors, [defendant] would not have pled guilty and would have insisted on going to trial[,]'" defendant should be permitted to withdraw his plea and go to trial on the serious drug charges. Ibid.; see State v. Nunez-Valdez, 200 N.J. 129, 140-43 (2009).
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.