Opinion
DOCKET NO. A-0683-13T3
04-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SAMAD KHUZAYMAH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1493. Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Samad Khuzaymah appeals from an order denying his petition for post-conviction relief (PCR). Defendant contends he received ineffective assistance of counsel. We affirm.
Defendant was charged with seven counts of conspiracy, possession of controlled dangerous substances (CDS), and possession with the intent to distribute arising from his transportation of his co-defendant to provide CDS to another person. Defendant was admitted into the pre-trial intervention program, but was later terminated after he failed to appear in court. After the charges were returned to the active criminal calendar, defendant pled guilty to an amended charge of third degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 (a), with the State recommending probation. The plea form executed by the defendant stated that the prison term for a third degree offense could be up to five years. The plea judge confirmed this fact with defendant, who advised the judge he did not have any questions about the plea form.
At sentencing, defendant's counsel advised the court that defendant understands that if he does not abide by his probationary terms, "he knows he's going to prison [for] five years." The judge agreed with the State's recommendation to place defendant on probation, and admonished defendant that, "if there's a violation, that you should probably go to State [p]rison." Defendant was sentenced to a three-year term of probation.
Fourteen months later, defendant pled guilty before Judge Michael A. Toto, who did not initially sentence defendant, to violation of probation for failure to report, failed drug tests, and failure to provide proof of employment. Rather than sentence defendant to prison, the judge continued him on probation on the condition that he successfully complete an in-patient drug treatment program. Judge Toto warned defendant that failure to complete the program and aftercare requirements would constitute a probation violation and will subject him up to five years in jail. Defendant replied that he understood.
Approximately a year and a half later, defendant pled guilty before another judge for another probation violation for failure to report to his probation officer after completing the drug treatment program, not providing drug screening urine samples, failure to completely pay his financial obligations, and conviction of a misdemeanor in New York City for which he served a ten-day jail term. In addition, the following colloquy occurred between defendant and his counsel:
Counsel: And at the time of your plea [to conspiracy to distribute CDS] you were advised that the maximum sentence for a third degree is five years in State prison; correct?
Defendant: Yes.
Counsel: And you understand that by pleading guilty at this time to violation of
probation it's within the range of sentence anywhere between three and five years in State prison --The sentencing judge rejected defense counsel's request to send defendant to county jail for 364 days, and sentenced him to five years in State prison.
Defendant: Yes.
Counsel: -- and I talked to you about that downstairs; correct?
Defendant: Yes.
Defendant filed a pro se PCR petition. He was subsequently assigned PCR counsel. Defendant contended that his trial counsel was ineffective by failing to: pursue a speedy trial, obtain an exculpatory statement from his co-defendant, advise him that he could receive a five-year prison term, and have him place an adequate factual basis for his plea allocution. Judge Toto conducted oral argument and issued a written decision denying defendant an evidentiary hearing and rejecting all of his PCR claims. This appeal followed raising the single point:
POINT I
THE PCR COURT ERRED IN DENYING MR KHUZAYMAH AN EVIDENTARY HEARING TO DETERMINE THE MERITS OF HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE HIM OF THE CONSEQUENCES OF VIOLATING PROBATION.
We begin with the well-settled principle that to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Ibid. The test is whether "counsel's conduct fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d 693. Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Ibid. To prove this element, a defendant must demonstrate "a reasonable probability that, 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 699.
A court reviewing a PCR petition based on claims of ineffective assistance of counsel has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462 (1992). "The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Accordingly, a "defendant must allege specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013). "[B]ald assertions" of ineffective assistance are insufficient to sustain a claim for PCR. Cummings, supra, 321 N.J. Super. at 170. When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing should be conducted only if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. Porter, supra, 216 N.J. at 354.
Defendant argues that only an evidentiary hearing could resolve whether he was aware at the time he pled guilty to conspiracy to distribute CDS that he could face up to five years in prison. We disagree. An evidentiary hearing is not necessary to determine the claim that defendant's trial counsel provided ineffective assistance by not advising defendant that a violation of probation could subject defendant to a five-year prison sentence. We agree with Judge Toto that the record demonstrates that the defendant was advised and understood at his plea hearing and subsequent court appearances that he faced up to five years in state prison if he violated probation.
Defendant has made no prima facie showing of ineffective assistance of counsel. His bald assertion that his trial counsel did not advise him of the penal consequences if he violated probation is inadequate. Cummings, supra, 321 N.J. Super. at 170. As noted, the plea form stated that his prison exposure for a third degree offense was five years, and at his sentencing his counsel stated that defendant knew he could go to prison for up five years if he violated his probation. Moreover, defendant understood the penal consequences as they were repeated at his first violation of probation plea and sentencing. Defendant voiced no misunderstanding of his prison exposure for violation of probation at any of these proceedings. Thus, Judge Toto was correct in concluding that defendant's "incarceration is the result of his actions [in violating probation] and not the result of his attorney's ineffective assistance of counsel."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION