Opinion
DOCKET NO. A-5881-11T4
03-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID D. CUNNINGHAM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 08-06-2136 and 08-08-2446. Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant David Cunningham appeals from an order which denied his petition for post-conviction relief (PCR) seeking to vacate his guilty plea. We affirm essentially for the reasons set forth by Judge Michelle M. Fox in her comprehensive and well-reasoned opinion from the bench on May 7, 2012. We remand for entry of amended judgments of conviction as the State concedes that defendant's argument relative to an award of jail credits is supported by the record.
Defendant pled guilty before Judge Lee A. Solomon to second-degree robbery, second-degree aggravated assault and fourth-degree fabricating evidence. Under the agreement, the State dismissed the remaining charges. Prior to sentencing, defendant moved pro se before Judge Solomon to withdraw his guilty plea. The motion was denied. The judge placed the reasons on the record citing those factors set forth by our Supreme Court in State v Slater, 198 N.J. 145 (2009). The judge sentenced defendant in accordance with the plea agreement.
Defendant filed a pro se petition for PCR on December 30, 2009. On May 18, 2010, defendant's petition was dismissed without prejudice pending the disposition of a direct appeal. Defendant's sentence was affirmed on appeal. On July 25, 2011, defendant re-filed the PCR petition, listing himself as pro se counsel. Defendant's petition was denied without an evidentiary hearing.
Defendant filed a notice of appeal. We granted defendant's motion to proceed pro se, retained jurisdiction, and remanded for a hearing pursuant to State v. Coon, 314 N.J. Super. 426 (App. Div. 1998). After defendant withdrew his motion, the appeal proceeded.
On appeal, defendant raises the following arguments:
I. THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.
A. DEFENDANT HAS ASSERTED A COLORABLE CLAIM OF INNOCENCE.
B. THE NATURE AND STRENGTH OF DEFENDANT'S REASONS FOR WITHDRAWAL ARE POWERFUL.
C. A PLEA BARGAIN EXISTS IN THIS CASE; HOWEVER, THE PLEA OFFER WAS NOT ACCEPTED KNOWINGLY AND VOLUNTARILY.
D. WITHDRAWAL OF THE PLEA WOULD NOT RESULT IN UNFAIR PREJUDICE TO THE STATE OR UNFAIR ADVANTAGE TO THE DEFENDANT.
II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE PCR COURT FAILED TO PROVIDE DEFENDANT WITH ALL OF THE APPLICABLE JAIL TIME CREDITS AND FAILED TO ADDRESS THIS CLAIM.
III. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PCR COURT FAILED TO HOLD A HEARING TO DETERMINE WHETHER THE ASSIGNMENT OF PCR COUNSEL OR SELF-REPRESENTATION WAS WARRANTED. (NOT ARGUED BELOW)
IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
In his pro se brief, defendant argues:
I. TRIAL COURT ORDER DENYING POST CONVICTION RELIEF MUST BE REVERSED SINCE THE TRIAL COURT FAILED TO AWARD JAIL CREDITS AGREED UPON AS ACCEPTANCE OF PLEA DEAL AND FAILED TO ADDRESS CLAIM AT HEARING.
II. PLEA AGREEMENT MUST BE VACATED ON THE GROUNDS CONDITIONS OF THE NEGOTIATED PLEA WERE NOT HONOR INVALIDATING THE PLEA AGREEMENT.
Our standard of review is "necessarily deferential" to the findings of a PCR court so long as the findings are supported by sufficient credible evidence in the record. State v. Nash, 212 N.J. 518, 540 (2013). Judge Fox determined that defendant's plea was knowing and voluntary. The judge cited extensively to the record of the plea and Judge Solomon's reasons for denying the motion to vacate the plea. After concurring with Judge Solomon that all of the Slater factors were resolved in favor of the State, the judge found defendant's claim "that the trial court erred in failing to vacate his guilty plea . . . [was] without merit." Our review of the record leads us to the same conclusion.
On the date of the plea, after the terms of the plea agreement were placed on the record by the State, Judge Solomon personally addressed defendant regarding his understanding of its terms. The judge specifically addressed defendant's right to go to trial and the consequences of pleading guilty to the charged offense, alerted defendant to the imposition of NERA, and inquired whether defendant had questions for the court or his counsel. Once the judge completed the colloquy with defendant, his counsel questioned him about the circumstances surrounding the commission of the offense. During this questioning, defendant acknowledged his culpability, specifically as to the charged crimes for which he was pleading guilty.
A guilty plea may not be entered by the trial court without the trial judge first addressing defendant personally and determining by inquiry of defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, with an understanding of the nature of the charges and consequences of the plea. R. 3:9-2; State v. Kovack, 91 N.J. 476, 484 (1982); accord State v. Simon, 161 N.J. 416, 443 (1999); State v. Barboza, 115 N.J. 415, 420-21 (1989); State v. Howard, 110 N.J. 113, 122 (1988); State v. Sainz, 107 N.J. 283, 292-93 (1987). The factual basis for a guilty plea must include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime. Sainz, supra, 107 N.J. at 293. "The need to establish a sufficient factual basis for a guilty plea is not obviated by the fact that the plea is part of a negotiated plea agreement." Ibid. The plea colloquy fully supports a finding that it was in compliance with R. 3:9-2 as well as Kovack and its progeny.
When petitioning for PCR, defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. Nash, supra, 212 N.J. at 541; Preciose, supra, 129 N.J. at 459. To sustain that burden, defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 162-64. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Nash, supra, 212 N.J. at 542 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
"[I]n order to establish a prima facie claim, [the 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." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is a reasonable probability test, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We have considered defendant's arguments in light of the record and applicable legal principles and are not persuaded by any of the arguments made in support of his appeal.
Concerning jail credit, the judgment of conviction on Indictment 08-06-2136 shall be amended to reflect credit for time served by defendant from October 16, 2006 through March 12, 2009. The judgment of conviction on Indictment 08-08-2446 shall be amended to reflect credit for time served by defendant from February 26, 2008 through March 12, 2009.
Affirmed in part. Remanded for further proceedings consistent with our decision. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION