May 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DANIEL BURKE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2012
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 05-07-1000 and 05-01-0023.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Sarah M. Mielke, Special Assistant Prosecutor, on the brief).
Before Judges Graves and Espinosa.
Defendant Daniel Burke appeals from a January 5, 2011 order denying his petition for post-conviction relief (PCR). Defendant argues he "is entitled to a hearing or a sentencing remand because trial counsel was ineffective for failing to assure that [defendant] understood the parole consequences of his plea." For the reasons that follow, we affirm.
Pursuant to a negotiated plea agreement encompassing two separate indictments, defendant pled guilty to the following charges: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count two of Indictment No. 05-01-1000); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count ten of the same indictment); two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts eight and eleven of the same indictment); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(c) (count one of Indictment No. 05-01-0023). In exchange, on Indictment No. 05-07-1000, the State agreed to dismiss the remaining charges and to recommend a fifteen-year term with an eighty-five percent period of parole ineligibility for first-degree aggravated sexual assault (count two); a concurrent seven-year term with an eighty-five percent period of parole ineligibility for second-degree sexual assault (count ten); and, concurrent seven-year flat terms for the second-degree endangering offenses (counts eight and eleven), consecutive to counts two and ten. The State further agreed to recommend a nine-month sentence for fourth-degree aggravated assault, concurrent to the other sentences. Thus, the State recommended an aggregate twenty-two-year custodial term, fifteen years of which were subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The plea form signed by defendant and his attorney stated defendant's "minimum mandatory period of parole ineligibility is 8 years and 8 months, " and defendant's "maximum period of parole ineligibility can be 17 years and 8 months." Moreover, when questioned by the court, defendant testified as follows:
COURT: Now, you've heard the prosecutor set forth the terms of the plea agreement, and that is that the State will recommend a sentence on the first-degree aggravated sexual assault not to exceed fifteen years in New Jersey State Prison.
COURT: And on the second-degree sexual assault, seven years in New Jersey State Prison concurrent with each other.
COURT: And you understand that those two prison sentences and those two crimes fall within the purview of the No Early Release Act --
COURT: -- requiring that whatever sentence is imposed by the Court, it's mandatory that the defendant serve 85-percent of the sentence imposed before they are eligible for parole?
DEFENDANT: Yes, I do know.
COURT: And that 85-percent rule applies to both Count 2 and Count 10.
Do you understand that?
DEFENDANT: Yes, sir.
COURT: And that's as a matter of law. There's no discretion with the Court. Do you understand that?
DEFENDANT: Yes, I do, your Honor.
Defendant also confirmed that he entered into the plea agreement freely and voluntarily; he was "satisfied with the advice and counsel" he received from his attorney; and he provided a factual basis for each of the offenses.
At sentencing on April 7, 2006, defendant stated, "I have had a year-and-a-half now for my mind to be clear, and I am very ashamed of myself." Defendant also asked the court "to go along with [the] sentence that we agreed with."
The court sentenced defendant in accordance with the negotiated agreement. Defendant received a fifteen-year prison term subject to NERA for aggravated sexual assault; a concurrent seven-year term subject to NERA for sexual assault; two seven-year terms for two counts of endangering the welfare of a child, concurrent to each other, but consecutive to the fifteen-year term for aggravated sexual assault; and a nine-month term for aggravated assault, concurrent with the seven-year terms for endangering, but consecutive to the aggravated sexual assault sentence. The court also ordered defendant to register as a sex offender, N.J.S.A. 2C:7-2, and imposed parole supervision for life, N.J.S.A. 2C:43-6.4.
Defendant did not file a direct appeal from his judgment of conviction. Instead, he filed the present PCR petition on January 7, 2010, alleging he entered into the plea agreement "because it specified a minimum parole ineligibility of 8 years and 8 months." Defendant also claimed his trial attorney "was operating more as a friend to the State than as my advocate." Defendant's PCR attorney filed a supporting brief and a reply brief to the State's opposition.
Following oral argument on January 5, 2011, the court denied defendant's petition. The court found that defendant failed to establish a prima facie claim of ineffective assistance of counsel because his assertion "that he was promised a parole ineligibility period of 8 years [and] 8 months . . . [was] contradicted by the record." This appeal followed.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-10). An evidentiary hearing is not warranted unless defendant presents a prima facie claim and the facts supporting the claim are not part of the trial record. Ibid. To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz two-prong test.
Under the first prong, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege 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); see also State v. Rountree, 388 N.J.Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
In the context of a plea agreement, the second part of the Strickland/Fritz test––the prejudice prong––focuses on whether defense counsel's performance "affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1994); accord State v. Di Frisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996).
In the present matter, the record fully supports the PCR judge's determination that defendant failed to establish a prima facie case of ineffective assistance of counsel. Accordingly, the order denying defendant's petition is affirmed substantially for the reasons stated by Judge James Den Uyl on January 5, 2011.