May 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CRAIG ORLER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2012
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-08-1152.
Herlihy & Young, attorneys for appellant (Francis Rodman Rupp, of counsel and on the briefs).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).
Before Judges Alvarez and St. John.
Defendant Craig Orler appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us.
An Ocean County Grand Jury returned Indictment No. 05-08-1152 charging defendant with the second-degree use of personal identifying information of another, N.J.S.A. 2C:21-17.2(a) (count one), and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count two). On December 13, 2005, defendant pleaded guilty to count one. At the plea hearing, the prosecutor indicated that the State would "seek dismissal of the balance of the indictment, some summonses and motor vehicle summonses." In addition, the prosecutor would request "a seven-year sentence . . . concurrent to the [State] sentence the defendant is presently serving." Defendant affirmatively responded to the judge's question that, "it is his understanding that pursuant to a plea agreement, the State, at sentencing is going to seek a sentence of seven years concurrent to the sentence you are presently serving."
There was no mention made of any federal charges at the plea hearing or in defendant's written plea agreement. Under paragraph thirteen of the plea agreement form which states, "[s]pecify any sentence the prosecutor has agreed to recommend, " the only recommendation listed is "7 years NJSP concurrent to sentence defendant is presently serving."
On March 10, 2006, at the sentencing hearing, defense counsel indicated that he had read defendant's adult pre-sentence report, which contained no information regarding any federal charges. Defense counsel stated: "There [we]re no additions or corrections to be made for sentencing. Your Honor, Mr. Orler is presently serving a state prison sentence . . . . We'd just ask that your Honor sentence him on this new matter to a concurrent term." Defendant then addressed the judge saying, "I was kind of hoping, your Honor, that I would be sentenced in absentia, being as though I have the federal case to take care of. I was going just to run this by you, ask you if you could do this for me. If not, I will go with the sentence." (Emphasis added). When the judge hesitated, defendant explained,
the problem is that if I'm sentenced to seven years, that I have to do the seven years before I go to the federal prison, now they're going to — I'm going to be getting a lot of time there and, you know, it just wouldn't be right for me to do seven years and then have to go to the federal prison and do, you know, ten, [fifteen] years.
The sentencing judge replied that, "[i]t's our intention, I will indicate on the record, that this run concurrent with that [federal] sentence, whatever it is." The judge determined that there was no objection from the prosecutor and continued the sentencing hearing without further interruption from defendant. After listing the sentencing factors, the judge stated, "I sentence you to the custody of the Commissioner of Corrections for a term of seven years, it being the Court's intention that the sentence run concurrent with the other sentence that you're facing." The judge dismissed count two and the other summonses consistent with the plea agreement. The judgment of conviction provided "[o]n Count 1 seven (7) years in the custody of the Commissioner of Corrections, concurrent with the sentence presently being served and the Federal sentence."
On May 23, 2006, almost one-and-one-half years after pleading guilty to the State charge, defendant entered a plea of guilty to two counts of a Federal Information relating to firearms offenses. On August 29, 2006, defendant was sentenced on the Federal charges to two concurrent 130-month terms of incarceration. Although it was not a condition of his negotiated Federal plea agreement, defendant's counsel requested that the Federal sentence be concurrent to the State sentence. That request was denied and defendant was sentenced to a consecutive Federal sentence. In 2010, defendant was released from State prison on parole and is currently serving his Federal sentence.
Defendant did not directly appeal his State conviction and sentence, but sought PCR. Defendant asserted that he was entitled to relief because of ineffectiveness of his trial counsel in the advice given to him concerning the penal consequences of his conviction. Additionally, defendant argued that he should be permitted to withdraw his plea of guilty. The PCR judge did not conduct an evidentiary hearing. After setting forth his review of the plea and sentencing transcripts, as well as the standards to be applied for a grant or denial of a PCR, the judge denied defendant's request by order dated August 17, 2011.
In his oral opinion, the PCR judge noted that the concurrent Federal sentence was not part of the plea agreement, and that the sentencing judge was, "saying basically I don't object to the seven being served concurrent with anything that the defendant might get on the Federal level." The PCR judge recognized that the trial judge's intention was not binding on the Federal judge and "[n]ot at all binding on the parties in this plea negotiation." The PCR judge also noted that defendant's request was part of his sentencing proceedings and not part of the plea agreement. It is from that order that defendant appeals.
Defendant presents the following point for our consideration:
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
Certain principles guide our consideration of the issue on appeal. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c)Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id . at 462-63.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show 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. Under the second prong, a defendant must demonstrate "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. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed.2d 657, 668 n.26 (1984).
On appeal, defendant argues that the court erred in denying his PCR petition because the record established a prima facie case of ineffective assistance of counsel during plea negotiations. Defendant states that he was arrested on the Federal charges prior to his State plea and that his counsel misled him into entering the plea by advising him that the sentence in the State matter would be concurrent to the sentence in the Federal case. It is virtually axiomatic that, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair disposition of the charges. See, e.g., Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Fritz, supra, 105 N.J. at 58.
"It is also clear that plea bargaining is a critical stage of the criminal proceeding at which the right of representation attaches." State v. Taccetta, 351 N.J.Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002), rev'd after remand, 200 N.J. 183 (2009); see also State v. Powell, 294 N.J.Super. 557, 564 (App. Div. 1996); United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). During this stage, "a defendant has the right to make a reasonably informed decision whether to accept a plea offer" and knowledge of potential sentence exposure is crucial to the decision of whether to plead guilty. Day, supra, 969 F.2d at 43; see also State v. Nichols, 71 N.J. 358, 361 (1976). Therefore, counsel's effective assistance at the plea bargain stage, as well as counsel's understanding of the sentencing consequences, is of paramount importance. See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309, 319 (1948) ("Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.").
However, the record belies defendant's factual contentions. Both the written plea form executed by defendant and the plea colloquy given under oath by defendant, clearly demonstrate that a concurrent Federal sentence was not part of defendant's plea negotiations, or the basis upon which he entered his plea of guilty. The sentencing record is also clear that this issue was raised for the first time by defendant at sentencing, in effect as a plea for leniency. Further, defendant acknowledged at sentencing that although he was asking for the concurrent sentences, "If not, I will go with the sentence." The sentencing judge attempted to accommodate defendant by expressing his "intention" that the sentences be concurrent. Thus, the apparent intent of the trial court was that defendant's State sentence would run concurrently to his Federal sentence. However, while the State trial court may recommend that a State sentence run concurrently to a Federal sentence, the court has no authority to so order. Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). Simply put, the Federal court is not "bound in any way by the state court's direction that the state and federal sentences run concurrently." Id . at 477 n.4 (citing U.S. Const. art. VI, cl. 2).
As to the prejudice prong, we view the record, as the PCR judge did, as establishing that the State's plea offer was accepted by defendant without consideration of any Federal sentence. In any event, guiding our consideration is "whether defendant would or could have entered a guilty plea to the purported plea offer if correctly advised concerning the sentencing consequences." Taccetta, supra, 200 N.J. at 193-94 (emphasis in original). Indeed, in order to succeed on an ineffective assistance claim, defendant must prove that there is a "reasonable probability" that, but for his counsel's deficient performance, "the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. The test requires neither speculation nor a subjective evaluation, but rather a determination as to whether the proposed plea agreement, acceptable to defendant if accurately advised, was objectively fair and reasonable under all the circumstances extant at the time and, if not, whether a different plea agreement that so qualifies would have been struck between the State and defendant. We note that a seven-year term is within the sentencing range for a second-degree offense, and defendant was sentenced to a term concurrent to the State sentence he was then serving. Moreover, defendant's own statement at sentencing that, even without the concurrent Federal sentence, he would "go with the sentence" supports a lack of prejudice. Affirmed.