December 6, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JERMAL PALMER, a/k/a JERMEL PALMER, a/k/a JAMAL ANDERS, a/k/a JAMAL PALMER, a/k/a JAMAR RODGERS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-12-3238, 01-01-0433, 01-02-0574, 01-03-0994, 01-03-1452, and 01-11-4452.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Guadagno.
Defendant Jermal Palmer appeals from the April 5, 2011 order denying his motion for post-conviction relief (PCR) and his alternative motion to withdraw his plea. On appeal, defendant argues:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S CONVICTIONS AND SENTENCES VACATED BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A SENTENCE THAT IS CONSISTENT WITH THE NEGOTIATED PLEA AGREEMENT WAS VIOLATED.
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
Following our consideration of these arguments in light of the record and applicable law, we affirm the denial of defendant's motion, although we grant the State's request for a limited remand to correct the judgment of conviction for indictment 01-03-994.
It is not necessary to present a lengthy recitation of the underlying events leading to defendant's convictions. We include only this brief statement.
Between December 2000 and November 2001, defendant was charged by an Essex County grand jury in six separate indictments. After defendant elected to go to trial before Judge Terence P. Flynn on indictment 433, he was convicted by a jury on June 26, 2002, of third-degree conspiracy to commit theft. He then proceeded to trial before Judge Flynn on indictment 994. On September 11, 2002, after jury selection had begun, defendant pled guilty, pursuant to a plea agreement, to eight of the sixteen counts in the indictment, including two counts of first-degree aggravated manslaughter and two counts of first-degree robbery. The plea agreement provided that the State would recommend a sentence not to exceed twenty-two years. Although defendant would be free to argue that the sentence should run concurrent to other sentences, the State would recommend it run consecutively.
On November 4, 2002, defendant was sentenced to a federal prison term of 105 months for violation of narcotics offenses.
On January 2, 2003, defendant resolved the three remaining indictments by pleading guilty pursuant to a plea agreement to various counts of those indictments, including first-degree carjacking, first-degree robbery, and third-degree possession of heroin and cocaine with intent to distribute within 1000 feet of school property. The plea agreement indicated that the sentences imposed under these three indictments would run concurrently to defendant's sentence for aggravated manslaughter.
On March 14, 2003, defendant was sentenced by Judge Flynn to a four-year term on indictment 433, and an aggregate twenty-two-year term on indictment 994, to run consecutively to the sentence on indictment 433 and the federal sentence. On indictment 574, defendant was sentenced to an aggregate eighteen-year term, concurrent with the 994 and 433 sentences. On indictment 3238, defendant was sentenced to twenty years, concurrent with the 994 sentence. Defendant was sentenced to three years on indictment 1452 and five years on indictment 4452, both sentences concurrent with the 994 and federal sentences.
Defendant appealed and we remanded for resentencing on all six indictments in accordance with State v. Natale, 184 N.J. 458 (2005). On March 20, 2006, defendant was re-sentenced to the original sentences imposed. Again, defendant appealed and the matter was heard by an excessive sentencing panel. On February 4, 2009, we affirmed defendant's sentences. The Supreme Court denied certification on June 19, 2009. State v. Palmer, 199 N.J. 543 (2009).
Defendant filed a pro se petition for PCR. After counsel was assigned, a letter brief was submitted in support of the petition. Judge Peter Ryan heard oral argument and denied the petition without a hearing on April 5, 2011. Judge Ryan also denied defendant's motion to withdraw his guilty plea, finding defendant "was fully aware of the penal consequences of the plea." Judge Ryan also found defendant's petition lacked merit, as there was no evidence of ineffective assistance of counsel.
Defendant's argument that the promise of concurrent sentences on defendant's other guilty pleas should include his sentence on indictment 994 finds no support in the record. When Judge Flynn accepted defendant's guilty plea to aggravated manslaughter under indictment 994, defendant was clearly informed that his sentence could be run consecutively to his other sentences:
[JUDGE FLYNN]: Now, the State has also told me that they reserve the right to ask that I sentence you to this term consecutive, meaning add on to this sentence any sentence that I might impose with a case in which you are in front of me or convicted before, for any of these other cases that are still pending. Do you understand that?
[JUDGE FLYNN]: Now, I understand your attorney may wish to work with [the] prosecutor and see if they can resolve some of those cases that are pending – I don't know what they are going to do – but nobody can predict what I will do as far as sentencing, whether I will sentence you consecutively to those – to the charge – the sentence here or not, or concurrently, and if anybody promises you or tells you that's what I'm going to do, I'm going to make everything concurrent, they are blowing smoke in your face, because I don't know what I am going to do. Right? Do you understand that?
We find that defendant's remaining arguments lack sufficient merit to warrant any further discussion in our opinion. R. 2:11-3(e)(2). Because defendant failed to present a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required on his PCR petition. See State v. Preciose, 129 N.J. 451, 462 (1992). We affirm for the reasons stated by Judge Ryan in his April 5, 2011 decision.
The April 5, 2011 order is affirmed. At the State's request, we remand for correction of the judgment of conviction on indictment 01-03-994 to reflect the correct date of defendant's guilty plea.