June 21, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ARMOND HOLLOWAY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-02-0161.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Al Garcia, Assistant Prosecutor, on the brief).
Before Judges Axelrad and Nugent.
Defendant Armond Holloway appeals from the July 27, 2010 Law Division order that denied his post-conviction relief (PCR) petition without an evidentiary hearing. Arrested twice within seven months for committing drug and weapon offenses, defendant was charged in separate indictments, entered guilty pleas on separate dates, and was sentenced on separate dates. Each sentence included a period of parole ineligibility. In this appeal, defendant alleges that his trial counsel and PCR counsel were ineffective; trial counsel for not explaining explicitly when defendant would be eligible for parole and for not attempting to have him sentenced on both indictments on the same date, and PCR counsel for not making those arguments in the PCR petition. We affirm.
On December 15, 2004, defendant was arrested (the first arrest) for possessing a substantial quantity of cocaine, scales, and a loaded semi-automatic handgun. Two days later he posted bail. Four months later, on April 1, 2005, a grand jury charged defendant in a six-count indictment (the first indictment) with, among other offenses, first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1) (count two). On June 27, 2005, defendant waived the requirement that the State make an application for an extended term sentence and pled guilty to count two of the first indictment. In exchange, the State agreed to recommend a twenty-year prison term with four-and-one-half years of parole ineligibility. The court did not revoke defendant's bail.
Less than a month later, on July 20, 2005, defendant was arrested (the second arrest) after police watched him sell cocaine from the porch of his house. When police tried to arrest him, he retreated into the house where he discarded a handgun and a large plastic bag containing cocaine. The police confiscated from the house a rifle, ammunition, cocaine, packaging material, and a digital scale. Defendant's bail was revoked and he has since remained in jail.
Sixty-four days after his second arrest, on September 23, 2005, defendant appeared for sentencing on count two of the first indictment. When the court mentioned the second arrest and its understanding that "the new file is not being dealt with today, " the prosecutor responded:
No your Honor. [Defense counsel] and I have had discussions. Actually, the last time we were in court your Honor gave us an adjournment to work something out on that new file. That new file is being handled by the Project Safe Neighborhood Unit . . . . Apparently [the other prosecutor] and [defense counsel] have not had any discussions about it. As such, I am not in a position to do anything with that file today, but the [S]tate is prepared to move forward on sentencing on this one.
The court sentenced defendant in accordance with the plea agreement to twenty years with four-and-one-half years of parole ineligibility, and imposed appropriate assessments and penalties. The court gave defendant jail credit for the three days he had spent in jail following his first arrest, plus "sixty-seven days' jail credits." The court also sentenced defendant to a concurrent five-year prison term, with no parole disqualifier, for violating a probationary sentence that had been imposed by the court in 2001.
Five months after defendant was sentenced on count two of the first indictment, a grand jury returned a sixteen-count indictment (the second indictment) based on the crimes defendant committed on July 20, 2005. The grand jury charged defendant with, among other crimes, first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1) (count four); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count fifteen).
Defendant pled guilty to counts four and fifteen in exchange for the State recommending a twenty-two-year prison term with five years of parole ineligibility on count four, and a ten-year prison term with five years of parole ineligibility on count fifteen, the sentences to run concurrent to each other and to the sentence defendant was serving on the first indictment. Defendant signed a plea form which included question 10, "[a]re you presently serving a custodial sentence on another charge" and question 10a, "[d]o you understand that a guilty plea may affect your parole eligibility?" The answer "yes" is circled next to question 10, while the answer "yes" next to 10a is circled but crossed out. Instead, the printed response, "N/A", next to 10a is circled. The court explained to defendant:
[T]he maximum sentence the [c]ourt could impose, if I go along with this, on Count 4 is a [twenty-two] year period of incarceration, with a [five] year period of parole ineligibility. You have to serve [five] years. It could be more because the parole authority makes the ultimate determination. A lot depends, of course, on your past record, your history in the institutions itself. The second count would be a ten year period of incarceration with a five year period of parole ineligibility to run concurrent. So, they're both running at the same time, you're looking at [twenty-two] over [five] with the two.
After explaining the sentence and the period of parole ineligibility, the court asked defendant what he was "serving now, " and defendant responded, "[f]our with one."
On September 1, 2006, the court sentenced defendant in accordance with the plea agreement and imposed appropriate assessments and penalties. Defendant received jail credit of one day for the day he spent in jail when arrested, and gap time credit of 343 days for the time he spent in jail following his sentence on the first indictment.
Defendant did not file a direct appeal. On November 27, 2008, he filed a pro se PCR petition. The court appointed counsel to represent defendant, and counsel filed a supplemental brief. In his pro se petition, he alleged that "counsel and the [c]ourt informed [him] he would receive 411 days jail credits. He agreed to plead guilty under the impression that he would be eligible for parole in July of 2010."
In a supplemental brief filed by appointed counsel, defendant argued that the 343-day gap time credit applied to the sentence on the second indictment should have been jail credit; or, alternatively, the time he spent in jail incarcerated between July 20, 2005, his second arrest, and September 23, 2005, his sentence on the first indictment, should have been awarded as gap time credit, and the time he was incarcerated between his first and second sentence should have been credited against the second sentence as jail time.
The court denied defendant's PCR petition but "in the interest of justice" awarded defendant an additional jail credit of sixty-four days -- the time he spent in jail between his second arrest and his sentencing on the first indictment -- to be applied against his sentence on the second indictment. The court determined, correctly, that the time defendant was in jail between his sentencings on the first and second indictments was gap credit, not jail credit. The court cited N.J.S.A. 2C:44-5b(2) which provides that in such situations "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[.]" The court entered the confirming order from which defendant appeals.
Defendant presents for our consideration the following points:
TRIAL COUNSEL FAILED TO ZEALOUSLY ADVOCATE FOR DEFENDANT WITH REGARD TO THE REAL TIME TO BE SERVED BEFORE PAROLE ELIGIBILITY, DEPRIVING DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST., AMENDS. VI & XIV, N.J. CONST., ART. I, PARA. 10.
PCR COUNSEL'S ARGUMENTS ON DEFENDANT'S BEHALF WERE INCOMPLETE AND ERRONEOUS, DEPRIVING DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST., ART. I, PARA. 10.
Defendant now contends that trial counsel should have attempted to "consolidate sentencing, " misinformed defendant about when he would be eligible for parole, and did not negotiate for jail credits as part of the plea agreement on the second indictment. Defendant also alleges that the attorney who represented him in the PCR proceedings was ineffective because she failed to raise "most of the errors" defendant now raises for the first time on appeal, and because she "mistakenly argued for jail credits to which defendant was 'entitled' rather than acknowledge the equitable nature of the relief sought." Lastly, defendant alleges that the PCR counsel failed to prepare the case for an evidentiary hearing. Defendant asks that we "remand to the trial court, for application of any and all available credits under any and all available theories."
To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient, " that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984); accord,
State v. Fritz, 105 N.J. 42, 58 (1987). To set aside a guilty plea based on ineffective assistance of counsel, a defendant must establish under Strickland's second prong "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (quoting
Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985)).
Having considered the record with those principles in mind, we conclude defendant did not establish a prime a facie case that his trial counsel was ineffective. In the brief he filed in support of his petition, defendant asserted that counsel misled him into believing that the time he was in jail between sentences would be jail credit, not gap time credit, applied to his sentence on the second indictment. Even if we accept as true defendant's allegations, and therefore agree that he has satisfied the first Strickland prong, defendant has not made a prima facie showing that he would have rejected his plea to the second indictment.
To begin with, defendant does not appear to request that his guilty plea be vacated. Rather, in the conclusion of his appellate brief, he asserts "[t]he judgment of conviction must be amended to reflect jail credit for all time in dispute. In the alternative, the matter should be remanded to a trial court for computation and application of all possible credits."
More importantly, defendant was facing a sentence of twenty years to life on count four of the second indictment, see N.J.S.A. 2C:43-6f and 43-7c, with a parole disqualifier at or between one-third and one-half of the sentence. Additionally, defendant faced sentencing exposure on numerous other counts of the second indictment, including offenses arising from his possession of a handgun and a rifle. The State's case against the defendant was strong, his crimes having been witnessed by police officers who saw him sell cocaine and discard drugs and a handgun as he fled from their pursuit. Defendant likely would have been convicted on multiple charges. Considering those circumstances, it is nearly inconceivable that he would reject the State's plea offer because of the different effect of gap time and jail credits on his parole eligibility.
Lastly, implicit in defendant's argument that trial counsel should have tried harder to consolidate the sentences is the speculative conclusion that counsel would have been successful. The record reflects that counsel attempted to negotiate a plea to all of the charges. The prosecutor who appeared at defendant's sentencing on the first indictment was not the prosecutor handling the charges stemming from defendant's second arrest. The latter charges had not been presented to a grand jury when defendant was sentenced on the first indictment. Defendant has not explained why he believes there was a probability that the first sentence could have been delayed, or that the State would have agreed to the same sentence recommendation on the second indictment had the sentencing proceedings been consolidated. Defendant's speculation to the contrary is insufficient to establish the second Strickland prong See
State v Cummings 321 N.J.Super. 154 170 (App Div) certif denied 162 N.J. 199 (1999).
Defendant's remaining argument concerning consolidation of his pleas and trial counsel's failure to ask for equitable application of credits was not raised in his PCR petition or his arguments at the hearing on that petition An appellate court ordinarily will not consider an issue that has not been presented at the hearing on the PCR petition
State v Arthur 184 N.J. 307 327 (2005) We decline to do so here.