July 11, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOSHUA JONES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-12-1303, 04-06-0609, and 04-07-0701.
Joseph E. Krakora, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stacey Zyriek, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Fuentes.
Defendant Joshua Jones appeals from the March 4, 2011 order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant had argued ineffective assistance of trial counsel, in part, in failing to advise him of the consequences of parole ineligibility and the "real time" penal consequences of his plea. We affirm.
In May 2005, defendant pled guilty to two counts of third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three of Union County Indictment No. 03-12-1303 and count four of Union County Indictment No. 04-06-0609), and third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count two of Union County Indictment No. 04-07-0701). In September 2005, defendant was sentenced to the negotiated term of five years imprisonment with a two-year parole disqualifier on each indictment. The sentences were to run consecutive to each other and concurrent to defendant's sentences in Middlesex and Somerset counties. The State dismissed the remaining charges.
Defendant appealed his sentence, which we affirmed on an ESOA calendar, R. 2:9-11, by order of February 6, 2007. On May 21, 2009, the Supreme Court denied certification. State v. Jones, 199 N.J. 518 (2009).
In November 2009, defendant filed a pro se PCR petition, supplemented by counsel, asserting ineffective assistance of trial counsel in failing to advise him that the six-year period of parole ineligibility would not begin until he was actually sentenced on the charges rather than as of the time of his arrest in Somerset County in July 2004, and in failing to advise him in "real time" of the penal consequences of his plea. He also asserted ineffective assistance of trial and appellate counsel in failing to argue that maximum consecutive sentences are excessive and disfavored in New Jersey.
Following oral argument on February 18, 2011, Judge Robert J. Mega denied defendant's PCR petition in a letter opinion and order. This appeal ensued.
On appeal, defendant argues that trial counsel's representation of him "was deficient in that he failed to advise him properly regarding his parole ineligibility period upon entering his guilty plea[, ]" which "deficiency resulted in a loss of [his] constitutional rights." Defendant further argues that trial counsel was ineffective in failing to explain the penal consequences of his plea, particularly that the approximate one year he spent in state prison on out-of-county charges would not apply to his parole disqualifier on these charges. Finally, defendant asserts error by the court in not granting him an evidentiary hearing on these issues.
Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments. We affirm substantially for the reasons articulated by Judge Mega in his comprehensive written opinion. We add the following brief comments.
Defendant has failed to establish a prima facie case of ineffective assistance of counsel as to any of his claims warranting an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-630 (1992) (holding that to establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). A review of the plea colloquy reveals that defendant knew and understood the consequences of entering a guilty plea. The fact that defendant questioned his entitlement to gap time credits shows he was aware that he could ask the court questions. If he truly did not understand the period of parole ineligibility, he could have, and likely would have, asked the court to explain it to him. Moreover, defendant's contention that he was not aware that parole eligibility is calculated from the date of the sentence is incredulous in view of his extensive criminal record dating back over three decades; he has served four state prison terms and has violated parole once.
There is more than ample basis in the record for Judge Mega's conclusion that defendant failed to demonstrate ineffective assistance of trial counsel under either prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[, ]" id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694, but a defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
The record is devoid of evidence that trial counsel was deficient or that but for any alleged errors, the result would have been different. As noted by Judge Mega, defendant received "an enormous benefit" by entering into the plea agreement as "he pled guilty only to third-degree charges and had numerous charges, including those of the second-degree, dismissed." The plea agreement further allowed him to serve his Union County sentence concurrent to sentences imposed in other counties.