Opinion
DOCKET NO. A-6178-12T2
04-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIE JONES, 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 (Sara B. Liebman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-11-1361 and 03-10-1117. 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 (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Willie Jones appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We reverse and remand for an evidentiary hearing in accordance with the holding of State v. Preciose, 129 N.J. 451, 462-63 (1992).
On October 31, 2011, defendant entered into a plea agreement and pleaded guilty to a second-degree charge of aggravated arson, N.J.S.A. 2C:17-1(a)(2). The plea was entered more than seven years after the crime and defendant's arrest.
In March 2004, defendant had started a fire in his employer's building in the City of Summit because he was angry about a reduction in the commissions he would receive. The fire allegedly caused more than two million dollars in damages. Defendant was arrested for the arson in July 2004 and released on bail sixty-one days later. In November 2004, a four-count indictment was returned against defendant in Union County for the arson and related charges.
In October 2005, while the Union County charges were pending, defendant was arrested on other federal charges. He was convicted of the federal charges and sentenced to prison. Our record does not reveal the nature of the federal case or the date or terms of his federal sentence.
At the time defendant appeared in Union County in 2011 to plead guilty to the State arson charge, he was serving the federal sentence. The plea form that defendant signed in conjunction with his Union County plea stated that the prosecutor agreed to recommend a sentence of "7 y[ea]rs State Prison concurrent to present federal sentence." In response to a question requiring defendant to "[l]ist other promises or representation that have been made by you, the prosecutor, your defense attorney, or anyone else as part of this plea of guilty," the plea form stated "none."
After the guilty plea, defendant waived his attendance at the State sentencing hearing because he wanted to return to his federal prison. He was sentenced in absentia on February 3, 2012, in accordance with the plea agreement to a concurrent seven-year sentence, and he was granted sixty-one days of jail credit. He did not appeal.
Instead, on June 19, 2012, he filed a pro se petition for PCR stating that it was his understanding that he would receive credit on the State sentence from the date of his federal arrest in October 2005. Counsel was appointed and filed an amended petition together with a certification of defendant in which he claimed his State plea counsel misinformed him about the concurrency of his State and federal sentences. He alleged his attorney told him "because the sentence imposed was going to be run concurrently, [defendant] would get jail credits from the time of [his] arrest on October 5, 2005." Defendant asserted he would not have pleaded guilty if he was not going to receive more than six years of jail credit time on a promised seven-year State sentence.
The trial court heard argument on the PCR petition and denied it without holding an evidentiary hearing. In a written opinion, the court noted that defendant had not submitted a certification from his plea counsel corroborating his contention that he was advised he would receive jail credit time from the time of his federal arrest. The court stated that "the record is [de]void of any information suggesting that Petitioner entered the plea agreement under this false premise." Also, defense counsel had not objected at the time of sentencing to the court's determination that defendant was entitled to sixty-one days of jail credit time. The court concluded that defendant had not established a prima facie showing of ineffective assistance of counsel to entitle him to an evidentiary hearing.
A different attorney from the Public Defender's Office appeared for defendant's sentencing than the one who represented him at the time of his guilty plea.
Defendant appeals from the April 30, 2013 amended order denying his motion for PCR relief. He argues:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE
OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER RULE 3:22 CRITERIA.
POINT II
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 agree that the PCR court should have conducted an evidentiary hearing to evaluate the credibility of defendant's claim and its potential effect on his guilty plea and sentence.
In State v. Porter, 216 N.J. 343, 354 (2013), the Court reiterated the necessity of holding an evidentiary hearing "when there are disputed issues of material facts related to the defendant's entitlement to PCR, particularly when the dispute regards events and conversations that occur off the record or outside the presence of the judge." The Court continued:
Certain factual questions, "including those relating to the nature and content of off-the-record conferences between defendant and [the] trial attorney," are critical to claims of ineffective assistance of counsel and can "only be resolved by meticulous analysis and weighing of factual allegations, including assessments of credibility." . . . These determinations are "best made" through an evidentiary hearing. . . . Even a suspicious or questionable affidavit supporting a PCR petition "must be tested for credibility and cannot be summarily rejected."
[Id. at 355 (quoting State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif.
denied, 158 N.J. 72 (1999), and State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008)).]
Here, defendant alleged his plea attorney advised him in a private conversation that his State sentence would run concurrently with his federal sentence and he would receive credit for the entire time he was in federal custody. While that allegation may prove to be untrue, the court should not have decided its truth or falsity without holding an evidentiary hearing, at which the plea attorney would presumably testify if available and possibly shed some light on defendant's assertion.
In addition, the court must determine the nature of defendant's federal conviction and the sentence he is likely to serve in federal prison. At oral argument on the PCR petition, the prosecutor stated that defendant will complete serving his concurrent State sentence long before he will be released from his federal sentence. If so, the PCR court must evaluate the significance of any State jail credits that defendant is granted to his custodial status and determine if the alleged ineffective assistance of counsel might change the outcome of the plea proceedings. See Strickland v. Washington, 466 U.S. 668, 694, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 694, 698 (1984).
Because Preciose, supra, 129 N.J. at 462-64, and Porter, supra, 216 N.J. at 354, mandate that the PCR court conduct an evidentiary hearing in the circumstances presented in this case, we reverse and remand for such a hearing.
Reversed and remanded. 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