September 13, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LANCE STEWART, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 07-09-3020, 08-02-0576, and Accusation No. 09-02-0509.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, 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 Lihotz and Guadagno.
Defendant Lance Stewart appeals from the August 1, 2011 order of the Law Division denying his petition for post- conviction relief (PCR) without an evidentiary hearing. We affirm.
In 2007, a grand jury sitting in Camden County returned Indictment Number 07-09-3020, charging defendant with various drug and weapons offenses, stemming from a September 6, 2006 arrest. In 2008, the grand jury returned Indictment Number 08-02-0576, charging defendant with drug and weapons offenses as well as burglary, stemming from a July 15, 2007 arrest.
Pursuant to a negotiated plea agreement, defendant resolved the charges under Indictment 3020 by pleading guilty to first-degree distribution and/or possession with intent to distribute cocaine. N.J.S.A. 2C:35-5(a)(1) and 5(b)(1). The State agreed to recommend a sentence of ten years with five years to be served without parole, to run concurrent to any violation of probation. As part of the plea agreement, defendant was required to withdraw his motion to suppress evidence seized at the time of his arrest.
Three months later, another plea agreement was negotiated whereby defendant pled guilty under Indictment 576, to an amended charge of third-degree burglary. N.J.S.A. 2C:18-2(b). Defendant also pled guilty to an unrelated accusation charging him with second-degree possession of cocaine with intent to distribute. N.J.S.A. 2C:35-5(a)(1) and 5(b)(2). The State agreed to recommend a sentence of four years on the burglary conviction to run concurrent with an eight-year sentence under the cocaine distribution charge. Defendant's plea agreement under Indictment 3020 was renegotiated with the term of incarceration increased to twelve years, with six years without parole, but that sentence would run concurrent to the sentences imposed under Indictment 576 and the accusation. All three of these sentences were to run concurrent to a four-year term imposed for a violation of probation.
On March 6, 2009, defendant was sentenced pursuant to the plea agreements. Although defendant waived appeal as part of the plea agreement, he was advised of his right to appeal. No appeal was taken from the sentence.
Defendant filed a pro se petition for PCR relief. Following appointment of counsel, PCR counsel filed a brief in support of defendant's petition. On July 25, 2011, Judge Michele M. Fox heard oral argument and denied the petition without a hearing. Judge Fox found that defendant's arguments addressed to his sentencing were procedurally barred, as he had an opportunity to raise them on direct appeal and failed to do so. Judge Fox also addressed defendant's claims substantively and found they had no merit. The State then asked the court to address a claim raised by defendant in his pro se filing but not addressed in PCR counsel's brief, that he was entitled to receive an "open" or "flat" term as opposed to the mandatory minimum terms that were imposed. Judge Fox filed a letter opinion on August 1, 2011, finding that defendant was not eligible for a flat or open plea agreement as, "(1) he was pleading guilty to first-degree and second-degree crimes;" and "(2) [d]efendant had three prior Superior Court convictions for [possession of [controlled dangerous substances]."
On appeal defendant raises the following points:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
1.DEFENDANT'S PETITION IS NOT BARRED.
2.DEFENDANT ESTABLISHED AT LEAST PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A.FAILURE TO SUFFICIENTLY ADVISE AND COUNSEL DEFENDANT REGARDING GUILTY PLEAS.
B.DEFICIENT PERFORMANCE AT SENTENCING.
C.FAILURE TO FILE DIRECT APPEAL.
3.AT THE VERY LEAST, DEFENDANT'S INEFFECTIVE ASSISTANCE CLAIMS WARRANTED AN EVIDENTIARY HEARING IN THE COURT BELOW.
We reject these arguments and affirm the denial of defendant's PCR petition primarily for the reasons contained in the thorough, fifty-four page oral decision of Judge Fox. We add only the following brief comments.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The two-pronged Strickland/Fritz test requires defendant to establish: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698.
Defendant's first claim is that plea counsel failed to sufficiently advise defendant regarding the guilty pleas. However, he provides no specifics to support his claim that counsel was deficient.
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.
Defendant's vague and conclusory claim that plea counsel gave him "misinformation and advice" is wholly inadequate to satisfy the first prong, as defendant makes not the slightest effort to explain what misinformation was provided. Without such specific statements, defendant's arguments are nothing more than the "bare assertions" Cummings deems inadequate. Cummings, supra, 321 N.J.Super. at 170.
We reach the same conclusion concerning defendant's claim that plea counsel rendered ineffective assistance by failing to argue for a reduced sentence. We adopt the reasons given by Judge Fox in rejecting defendant's claim. Judge Fox found that, had plea counsel presented additional arguments as to aggravating and mitigating factors, these arguments would have been unavailing.
Defendant's remaining arguments lack sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).