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State v. Bennett

Superior Court of New Jersey, Appellate Division

August 8, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MALIK A. BENNETT, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 16, 2013

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 94-08-2121.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

Before Judges Sapp-Peterson and Nugent.

PER CURIAM

Defendant Malik A. Bennett appeals from the April 27, 2007 Law Division order that denied his petition for post-conviction relief (PCR).[1] In this appeal, he presents the following arguments:

POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT HIS GUILTY PLEA WAS NOT ENTERED INTO KNOWINGLY WITH A COMPLETE AWARENESS OF ITS PENAL CONSEQUENCES AS A RESULT OF MISINFORMATION PROVIDED TO HIM BY TRIAL COUNSEL, THE TRIAL COURT ERRED IN DENYING HIS PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.
POINT II
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.
POINT III
THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED PURSUANT TO EITHER RULE 3:22-3 OR RULE 3:22-4.

Having considered defendant's arguments in light of the record and controlling law, we conclude the PCR court did not err when it determined that defendant's petition was time-barred. Accordingly, we affirm.

I.

More than sixteen years ago, in October 1996, defendant pled guilty to both counts of an indictment charging him with first-degree carjacking, N.J.S.A. 2C:15-2a(2) or (4) (count one), and first-degree kidnapping, N.J.S.A. 2C:13-1b(1) (count two). Defendant recounted the circumstances of his crimes during the plea hearing. On May 19, 1994, he was at the Cherry Hill Mall, "on the run from Pennsylvania, " when he spotted a lady going to her car. He pushed her into the passenger side, stole the car with her inside, drove around for twenty to thirty minutes, and then stopped and put her in the trunk. He drove for another hour and then locked the woman in a shed behind someone's house so that he would have extra time to get out of the area.

During defendant's plea hearing, the prosecutor informed the court the State would recommend consecutive sentences of twenty-two years with eleven years of parole ineligibility, for an aggregate term of forty-four years with twenty-two years of parole ineligibility. The prosecutor explained:

While we would have offered a consecutive sentence of somewhat less than this number, this encompasses both a concurrent sentence and additional time. The defendant [is] serving a minimum of [fifteen] in Pennsylvania. I think he's got maybe two years in there. And so this would entail a minimum of some eight or nine years additional, which I think is appropriate in this offense.

Later in the hearing defendant confirmed his understanding that the sentences would be consecutive, that he would serve twenty-two years without parole, but that the consecutive sentences would be concurrent to the sentence he was serving in Pennsylvania.

The court confirmed that no one had told defendant anything different about what the sentence would be; that defendant had had enough time to decide whether to plead guilty; and that defendant was satisfied with the services of his attorney, who defendant felt had explained everything to him. Defendant did, however, ask to speak with his attorney about the consecutive nature of the sentences. After their discussion, the court further explained:

[COURT:] Yeah. Now, when I say consecutive, it's [twenty-two] years, [eleven] without parole on Count I, [twenty-two] years, [eleven] years without parole on Count II consecutive. That means they're one after the other. They're not running at the same time. So, all together it is [forty-four] years, [twenty-two] years without parole, and it will run concurrent with your Pennsylvania sentence. So, if you still have [fifteen] years or so -- is that what you have on your Pennsylvania sentence?
[DEFENDANT:] I have about [thirteen] – [thirteen] more years left.
[COURT:] You would owe New Jersey about another nine when you get back before you're eligible for parole. Do you understand that?
[DEFENDANT:] Yes.
[COURT:] You'd have to come from Pennsylvania to New Jersey. Do you understand that?
[DEFENDANT:] Yes
[COURT:] Do you understand that?
[DEFENDANT:] Yes.
[COURT:] That answer your questions?
[DEFENDANT:] Yes, sir.
[COURT:] All right. And does that in any way change your mind as to whether to plead guilty or not?
[DEFENDANT:] No, sir.

The court sentenced defendant on November 1, 1996. At sentencing, after the prosecutor explained how he had arrived at his recommendation for consecutive twenty-two-year sentences, defendant's attorney reminded the court that his client, age twenty-one, would be doing at least fifteen to twenty-two years. The court immediately corrected him by saying, "[t]wenty-two, under this sentence." The attorney further stated: "He's greatly concerned, your Honor, that in twenty-two years, there'll be nothing left for him to do in society because society . . . has passed him by . . . . And it bothers him but he understands he's got a responsibility to pay back to society."

Thereafter, the court explained to defendant that, in the court's mind, the plea agreement was appropriate. The court also concurred with the prosecutor that the sentences for the New Jersey crimes should run consecutive to defendant's sentence for the Pennsylvania crimes; but because plaintiff wanted the New Jersey sentence to run concurrent to the Pennsylvania sentence,

the Prosecutor has offered you this sentence because it's -- the real time that you're going to serve and is appropriate and as long as that's the real time that you're going to serve, it doesn't matter to [the prosecutor] or frankly, to me either whether it's done by structure. It could run consecutive to your Pennsylvania sentence or by making it a larger number, concurrent to the Pennsylvania sentence as long as you serve this amount of time.

The court sentenced defendant to an aggregate custodial term of forty-four years with twenty-two years of parole ineligibility, as agreed upon by the parties.

Ten years later, in November 2006, defendant filed his PCR petition, seeking to have his sentence reduced to an aggregate term of twenty-two years with eleven years of parole ineligibility, or, alternatively, to withdraw his plea. In his supporting certification, defendant explained that in 1995 he received an aggregate prison term of fifteen to sixty years for a kidnapping and two robberies he had committed in Pennsylvania. He alleged that when he pled to kidnapping and carjacking in New Jersey, the prosecutor offered to recommend a sentence of thirty years with eleven years of parole ineligibility on each crime, the sentences to run concurrent to each other and concurrent to his Pennsylvania sentence.

Defendant further alleged that he advised his New Jersey attorney that he would not agree to a plea deal that would result in a period of incarceration in excess of the fifteen-year minimum sentence he was serving in Pennsylvania. Lastly, he claimed the plea form he signed when he pled guilty to the New Jersey offenses indicated that he would serve thirty years with a minimum parole ineligibility of eleven on each of the kidnapping and carjacking offenses, and that they would run concurrent. According to defendant, the plea form was changed without his knowledge.

To explain the statements he made when he entered his plea in New Jersey, defendant said that he thought the plea hearing was "merely a formality." He claimed that is what his attorney told him. Defendant stated in his certification, "[h]e told me that the Judge was going to tell me what my sentence could be if [I] did not accept the plea. That is what I thought the [c]ourt was telling me at the plea hearing." Defendant also averred in his certification that during the plea colloquy, when he asked to speak with his attorney, he said to the attorney, "I just want to know if I'm getting what's on my plea form." According to defendant his attorney responded, "Yes, you're getting what's on your plea form. You will not have to serve time in New Jersey."

Defendant claims he did not realize the New Jersey sentences were consecutive until sometime in 2005, when he filed his first motion, which was never scheduled to be heard.[2]Thereafter, he filed the subject PCR petition and on April 27, 2007, the court conducted a hearing. At that hearing, defendant testified that he was twenty-one years old when he pled guilty to carjacking and kidnapping in 1996. He spoke with his attorney only twice, for fifteen minutes on each occasion, before appearing in court and pleading guilty. The attorney did not explain to him the concept of merger, that there might be other offenses more applicable than kidnapping, and that there was a possibility the kidnapping charge could be downgraded.

Defendant testified that when he pled guilty he had one goal:

I just wanted to make sure that I didn't receive a sentence that was higher than my Pennsylvania sentence because I figured my [fifteen] to [sixty] was a lot of time and I would be at a certain age that I would be getting older. And I didn't want to do more than that and be even older than that to get on with my life, and I expressed that to him.

Defendant told his attorney that if the prosecutor would not agree to a sentence that was no higher than his Pennsylvania sentence, he would go to trial. The attorney met with the prosecutor and returned with a plea form that had been filled out completely. Defendant identified the plea form. Beneath question thirteen, "specify any sentence the prosecutor has agreed to recommend, " was the following hand-written notation:

30 yrs/11 no-parole concurrent to 30 yrs, 11 no-parole 2 (50 VCCB) 2 (75 StS) all lawful jail credit WV RT to Appeal – All concurrent to Pennsylvania.

The first reference to "30" years was crossed out and above it was inserted "22." The term "concurrent" was crossed out and the word "consecutive" inserted above it. The second reference to "30" years was crossed out and the number "22" inserted above it. Additionally, beneath the line on which the handwriting appeared, was the following handwritten notation: "Aggregate 44/22 no-parole." Defendant testified that when his attorney showed him the plea form, none of the alterations had been made. Consequently, he believed he would receive concurrent sentences of thirty years and that he would be required to serve eleven years before becoming eligible for parole.

Defendant also testified that before returning to court to put his plea on the record, his attorney told him that the court proceeding would simply be a formality "where the [j]udge will tell me what sentence he could give me if he wasn't to accept my plea form." Defendant also claimed his attorney told him that he would have nothing to worry about because the attorney had signed the form, the prosecutor would sign it, and the judge would just "follow suit."

During his plea hearing, when the judge started telling him about other sentences, defendant asked his attorney off the record whether he was going to get the sentence he signed for in the plea agreement. The attorney assured him that he would receive the plea he signed for, that the court proceeding was only a formality, and the judge was simply explaining what sentence would be imposed if defendant rejected the plea agreement.

Defendant further testified that approximately two years before the PCR hearing, as his parole eligibility date on the Pennsylvania sentence neared, he asked a counselor what he had to do to prepare for parole. He learned for the first time that he would not be paroled because of a New Jersey detainer. That is when he learned that the sentence he had actually received was not the one he agreed to in the plea form. When he eventually obtained a copy of the plea form, he realized his lawyer had changed it without his knowledge.

Following the hearing, the court denied defendant's petition. After reviewing the plea transcript, the court determined that there was "overwhelming documentation and explanation of the consecutive nature of these sentences, to the point where it was questioned, there was an explanation for the change on the plea form, that being that originally the plea was going to be something different but run consecutive to the Pennsylvania sentence." The court rejected defendant's testimony, finding instead that when defendant pled guilty the prosecutor and the court plainly and repeatedly explained that the sentences for the New Jersey kidnapping and robbery charges would run consecutive.

Defendant filed a notice of appeal, and thereafter an amended notice of appeal, both in October 2010. On December 16, 2010, we denied without prejudice his motion to file the notice of appeal as within time. We granted his motion for reconsideration and on April 13, 2011, counsel entered an appearance on behalf of defendant. This appeal followed.

II.

We first address defendant's argument in Point II that the PCR judge erred by determining that the PCR petition was time-barred. There are time limitations on filing PCR petitions. When defendant filed his PCR petition, Rule 3:22-12(a) provided in pertinent part:[3]

(a) General Time Limitations. A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

The reasons for the time limitations contained in Rule 3:22-12 include, "the difficulties associated with a fair and accurate reassessment of the critical events" as time passes, and "the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation." State v. Mitchell, 126 N.J. 565, 575-76 (1992). Notwithstanding these policy considerations, "a court may relax the time bar if adherence to it would result in an injustice." State v. McQuaid, 147 N.J. 464, 485 (1997).

When a defendant asserts excusable neglect and argues that the PCR court should relax the time bar, the "court should consider 'the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits.'" Ibid. (quoting Mitchell, supra, 126 N.J. at 580). If the court reaches its decision after making factual determinations that resolve conflicting evidence, we defer to those factual findings that are "supported by adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)) (internal quotation mark omitted), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed.2d 898 (2005).

Here, the PCR court's factual determinations are amply supported by the record. During defendant's guilty plea colloquy, the court plainly, unequivocally, and repeatedly explained to defendant that the sentences to be imposed on the New Jersey carjacking and kidnapping charges would be consecutive. The court not only explained that defendant would be required to serve twenty-two years before becoming eligible for parole, but also pointed out that the twenty-two year parole disqualifier would require defendant to serve part of his sentence in New Jersey after his parole in Pennsylvania. In fact, when defendant explained that he still had thirteen years left before becoming eligible for parole in New Jersey, the court replied, "you would owe New Jersey about another nine when you get back before you're eligible for parole." Defendant acknowledged that he understood the court's explanation.

After rejecting defendant's PCR testimony, the court concluded that defendant had not demonstrated excusable neglect under Rule 3:22-12(a) that would warrant relaxing the time limitation for filing a first PCR petition. The court did not err by so concluding.

Having decided that defendant's petition was time-barred under Rule 3:22-12(a), we need not consider defendant's remaining arguments.

Affirmed.


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