Opinion
DOCKET NO. A-0715-14T2
08-31-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH E. HARRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-10-1189. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Joseph Harris appeals from the trial court's June 10, 2014, order denying his petition for post-conviction relief (PCR) without an evidentiary hearing, and his motion to withdraw his plea.
Defendant entered a guilty plea to a two-count accusation charging him with second-degree possession of a controlled dangerous substance (CDS), heroin, with intent to distribute, N.J.S.A. 2C:35-5(b), and second-degree possession of a weapon, a shotgun, while committing a CDS crime, N.J.S.A. 2C:39-4.1(a). Consistent with the plea agreement, the court sentenced defendant to a term of eight years, with a four-year period of parole ineligibility on the weapons charge, concurrent to a flat term of eight years on the CDS charge.
The judgment of conviction does not specifically tie the sentences imposed to the two convictions. However, in the plea hearing, the judge explained that the MPI would be imposed on the weapons conviction.
In his pro se PCR petition, defendant contended that his attorney did not investigate the facts or law of his case, did not discuss or pursue any defensive strategy, and pressured him to enter his plea. He also asserted that the library at the Union County Jail was "so restricted that it constitute[d] a deprivation of [his] right to access . . . the Courts." However, defendant did not certify that, but for his counsel's errors, he would have gone to trial instead of pleading guilty. In his counseled brief, defendant also sought to withdraw his plea pursuant to State v. Slater, 198 N.J. 145 (2009). He also argued that his trial counsel was ineffective by failing to argue, as a mitigating factor in sentencing, that he was a drug addict.
The trial court denied relief in a written opinion. The court applied the well-settled two-prong test for assessing claims of ineffective assistance of counsel announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under that test, a defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Id. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698; State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
The court found that defendant failed to present a prima facie case of ineffective assistance. The court held that defendant presented only bald claims of deficient performance, and his assertions that he pled guilty under duress were belied by the plea transcript. Relying on State v. DiFrisco, 137 N.J. 434, 457 (1994), the Court noted that to establish prejudice in a collateral challenge to a conviction following a guilty plea, a defendant must show that "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." Defendant failed to do so.
The court separately considered defendant's motion to withdraw his plea. See State v. O'Donnell, 435 N.J. Super. 351, 368-73 (App. Div. 2014) (noting that a motion to withdraw a plea and a petition for PCR based on ineffective assistance of counsel are distinct requests for relief). Applying the four-factor test under Slater, supra, 198 N.J. at 157-58, the court concluded that withdrawal of defendant's plea post-sentencing was not required to correct a "manifest injustice," as required by Rule 3:21-1. In particular, the court noted that defendant did not make a colorable claim of innocence, and his claims of deficient performance were unsupported.
On appeal, defendant presents the following points for our review:
POINT I - THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
POINT II - THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S POST-CONVICTION RELIEF MOTION TO WITHDRAW HIS PLEA OF GUILTY.
(A)
THERE WAS AN INADEQUATE FACTUAL BASIS TO SUPPORT DEFENDANT'S GUILTY PLEA.
(B)
STATE V. SLATER FACTORS SUPPORT WITH-DRAWAL OF DEFENDANT'S GUILTY PLEA.
POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We discern no error in the trial court's determination that defendant failed to satisfy both prongs of the Strickland test. On that point, we affirm substantially for the reasons set forth in the trial judge's written opinion.
However, we are constrained to reverse the trial court's denial of the motion to withdraw defendant's plea. We do so because the plea agreement, with which the sentencing court complied, called for an illegal sentence.
"[A]n illegal sentence is one that exceeds the maximum penalty provided in the Code for a particular offense or a sentence not imposed in accordance with law." State v. Acevedo, 205 N.J. 40, 45 (2011) (internal quotation marks and citation omitted). N.J.S.A. 2C:39-4.1(d) clearly provides that a sentence for possession of a firearm in the course of committing a CDS offense must be consecutive to that imposed for the drug offense. State v. Spivey, 179 N.J. 229, 244 (2004).
N.J.S.A. 2C:39-4.1(d) states, in relevant part:
Notwithstanding the provisions of [N.J.S.A.] 2C:44-5 or any other provision of law, the sentence imposed upon a violation of this section shall be ordered to be served consecutively to that imposed for any conviction for a violation of any of the sections of chapter 35 or chapter 16 referred to in this section . . . .
"[A] reviewing court is not free to ignore an illegal sentence." State v. Moore, 377 N.J. Super. 445, 450 (App. Div.), certif. denied, 185 N.J. 267 (2005). A court may generally correct an illegal sentence at any time, see Rule 3:21-10(b), provided the correction does not impinge upon double-jeopardy principles. State v. Schubert, 212 N.J. 295, 310 (2012).
However, imposition of a consecutive sentence in accord with N.J.S.A. 2C:35-4.1(d) would result in a greater sentence than defendant accepted in his plea agreement. Consequently, he should be permitted to withdraw his plea. Cf. Moore, supra, 377 N.J. Super. at 448 (allowing defendant to withdraw his guilty plea after determining that concurrent sentences pursuant to plea agreement violated mandatory consecutive sentencing provision of N.J.S.A. 2C:44-5(i)). We therefore reverse the trial court's denial of defendant's motion to withdraw his plea.
Affirmed in part and reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION