September 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWNTAY GILL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-01-0132.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2012
Before Judges Fuentes and Koblitz.
Defendant Shawntay Gill appeals the trial court's order denying his petition for post-conviction relief (PCR). We affirm.
On January 29, 1998, a grand jury in Middlesex County returned an indictment charging defendant with first-degree conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; two counts of first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; second-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b); and third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b). On May 25, 2000, defendant pleaded guilty to both counts of first-degree armed robbery pursuant to a negotiated plea agreement.
Under the terms of the plea agreement, the State agreed to recommend that defendant receive two eleven-year sentences, one for each count, to be served concurrently, subject to an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The agreement further provided that, if defendant failed to appear on the date of sentencing, the State was entitled to recommend that defendant receive the maximum sentence authorized by law. See State v. Subin, 222 N.J. Super. 227, 238-39 (App. Div.), certif. denied, 111 N.J. 580 (1988).
On August 25, 2000, the original date scheduled for sentencing, defendant failed to appear. The sentencing hearing was adjourned and rescheduled for February 2, 2001. Again, defendant failed to appear. A bench warrant was issued for his arrest. Defendant remained a fugitive until February 10, 2006, the date on which the bench warrant was executed. For four out of the five years that defendant was a fugitive, it appears that he was incarcerated in Pennsylvania. On March 31, 2006, the court finally sentenced defendant to two fifteen-year terms of imprisonment, to be served concurrently, subject to the parole restriction under NERA. On direct appeal, we reviewed and affirmed defendant's sentence in accordance with the summary process available under Rule 2:9-11. State v. Gill, No. A-1662-06 (App. Div. Sept. 18, 2007).
On June 10, 2008, defendant filed a pro se PCR petition alleging ineffective assistance of counsel and a memorandum of law discussing the legal basis for the relief requested. Specifically, defendant alleged that his trial attorney did not properly explain to him the consequences of failing to appear for sentencing. The court assigned counsel to represent defendant in prosecuting the petition. Defendant's PCR counsel filed a supplemental memorandum of law on June 20, 2009. The court considered the arguments presented by counsel and denied defendant's petition in an order dated October 30, 2009.
In an oral ruling delivered from the bench, the PCR judge rejected defendant's petition on three grounds. First, the judge found that this court's decision, affirming the sentence imposed by the trial court, precluded defendant from relitigating the validity of the sentence in a PCR petition. Second, the judge found that the trial counsel's alleged error did not compromise defendant's rights under the Sixth Amendment. Third, the judge found that even if the trial counsel's performance was deficient in that it failed to inform defendant of the consequences of his failure to appear at sentencing, the plea hearing transcript showed that the judge addressed defendant directly on this issue and fully explained those consequences to him.
In this appeal, defendant raises the following arguments:
SENTENCING THE DEFENDANT TO A TERM OF IMPRISONMENT GREATER THAN WHAT WAS PROVIDED FOR IN THE PLEA AGREEMENT WAS UNCONSTITUTIONAL, RESULTING IN THE IMPOSITION OF AN ILLEGAL SENTENCE AND REQUIRING REVERSAL OF THE SENTENCE IMPOSED.
BECAUSE THE ENHANCED SENTENCE IMPOSED BY THE SENTENCING COURT WAS BASED ENTIRELY ON THE DEFENDANT'S NONAPPEARANCE, REVERSAL IS REQUIRED.
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY AT THE PLEA AND SENTENCING HEARINGS, IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS. (Partially Raised Below)
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS APPELLATE COUNSEL IN THE DIRECT APPEAL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS. (Partially Raised Below)
THE GUILTY PLEAS MUST BE VACATED BECAUSE THE DEFENDANT DID NOT ENTER INTO THE PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY AND WAS NOT INFORMED ABOUT OR AWARE OF THE PENAL AND COLLATERAL CONSEQUENCES OF THE PLEA AGREEMENT PRIOR TO THE PLEA HEARING.
THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE SENTENCING HEARING AND INEFFECTIVENESS OF APPOINTED TRIAL, APPELLATE AND PCR COUNSEL.
We review a claim of ineffective assistance of counsel under the two-prong test established by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must demonstrate that their counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must show that 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.
Against this standard, defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
The record of both the plea and sentencing hearings clearly show that defendant was fully apprised of the penal consequences of his failure to appear for sentencing. The judge who presided over the plea hearing addressed defendant directly on this issue.
[THE COURT:] STATE V. SUBIN applies, meaning if you make bail and you don't show up for sentencing, I can sentence you for [sic] 20 years on each count. Do you understand that? [DEFENDANT:] Yes.
Defendant's failure to appear at the original sentencing hearing was not caused by events beyond his control. Defendant told the court at the 2006 sentencing hearing that he did not appear for sentencing in 2000 because he was "scared." Defendant thus inexcusably and deliberately failed to appear at sentencing to avoid or, at the very least, defer the penal consequences of his criminal acts. In light of this evidence, the PCR judge correctly concluded that defendant did not establish a prima facie case for his claim of ineffective assistance of counsel and that an evidentiary hearing was unwarranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
We affirm substantially for the reasons expressed by the PCR judge in his oral opinion delivered from the bench on October 30, 2009.
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