Opinion
DOCKET NO. A-3526-13T1
04-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RODNEY GREENE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-07-1592. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Rodney Greene appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On April 23, 2008, defendant pled guilty to third-degree shoplifting, N.J.S.A. 2C:20-11(b), in Atlantic County Superior Court. According to his petition, defendant has been in federal custody since April 20, 2007, and was sentenced on November 9, 2009, to an eighty-nine month term of imprisonment on undisclosed federal offenses. The State had lodged a detainer against defendant, and he was taken into custody by the Atlantic County Sheriff for his appearance. After defendant pled guilty, he was immediately returned to federal custody. The State obtained temporary custody of defendant again on July 18, 2008, for sentencing. Defendant was sentenced to three years in state prison, to run concurrently with his federal sentence, and again returned to federal authorities.
Defendant did not appeal his conviction but filed a "motion requesting relief" with the trial court asserting that the State violated Article IV of the Interstate Agreement on Detainers (the IAD), N.J.S.A. 2A:159A-1 to -15, when it returned him to federal custody after his plea hearing. On February 3, 2010, the trial court denied the motion, finding no violation of the IAD.
Defendant later filed a PCR petition, again alleging violation of the IAD and arguing that he received ineffective assistance of counsel because his attorney failed to raise the issue after his guilty plea and initial return to Philadelphia. The trial court denied the petition on August 23, 2013, reasoning the IAD does not require a court to sentence a prisoner before returning him to the jurisdiction that originally detained him. Additionally, the trial court reasoned the issue "was not the type of matter that would be raised on a PCR."
Defendant now raises the following point on appeal:
DEFENDANT SHOULD BE GRANTED AN EVIDENTIARY HEARING BECAUSE PLEA COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE TO DISMISS HIS MATTER BECAUSE AFTER HE PLED GUILTY, HE WAS RETURNED TO FEDERAL CUSTODY IN VIOLATION OF INTERSTATE AGREEMENT ON DETAINERS.
Notwithstanding the State's contention that the petition is procedurally barred, we affirm on the merits. A defendant is entitled to an evidentiary hearing if he can establish a prima facie case of ineffective assistance of counsel. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). The failure to file a meritless motion cannot constitute ineffective assistance of counsel. State v. O'Neal, 190 N.J. 601, 619 (2007). Because defendant's IAD claim fails as a matter of law, the trial judge correctly denied his PCR petition without an evidentiary hearing.
The IAD creates a "cohesive framework by which prisoners held in custody by a sending state can be transferred to the custody of a receiving state for purposes of prosecution in the receiving state." State v. Baker, 198 N.J. 189, 193 (2009). Interpreting Article IV of the IAD, also known as the anti-shuttling provision, the Court in Baker held that when a prisoner is transferred to a receiving state, he "is to remain there until all proceedings are concluded in that jurisdiction." Id. at 194. Under the plain language of the IAD, however, those proceedings do not include sentencing after entry of a guilty plea. Article IV states, "If trial is not had on any indictment . . . prior to the prisoner's being returned to the original place of imprisonment . . . the court shall enter an order dismissing the same with prejudice." N.J.S.A. 2A:159A-4(e) (emphasis added). Because defendant was transferred to federal custody while awaiting sentencing, not trial, the IAD is inapplicable.
We reached the same conclusion in State v. Miller, 277 N.J. Super. 122 (App. Div. 1994), certif. denied, 142 N.J. 449 (1995). In that case, the defendant was in federal custody in New York when he was brought to Superior Court in Passaic County to plead guilty to armed robbery. Id. at 125. After his plea, but before his sentencing, the defendant was returned to federal custody. Ibid. On appeal, we rejected his contention that this practice required dismissal of the indictment under the IAD. We reasoned the language of the IAD and relevant case law interpreting it clearly indicated "that Article IV does not apply to a post-plea transfer." Id. at 127; see, e.g., United States v. Currier, 836 F.2d 11, 16 (1st Cir. 1988) ("Nor does [the IAD] apply to those who have been convicted but not yet sentenced.").
Defendant was returned to federal custody in Philadelphia only after entering his guilty plea. The State therefore did not violate the IAD. The trial judge did not err in denying defendant's PCR petition without a hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION