Opinion
DOCKET NO. A-0201-15T1
04-28-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY MALLARD, a/k/a GREGORY G. MALLORD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Eric P. Knowles, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-1007. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Eric P. Knowles, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Gregory Mallard appeals from a July 9, 2015 order denying him post-conviction relief (PCR). We affirm.
The following facts are uncontroverted. On the morning of August 31, 2008, Jersey City police arrived at the area of 16th Street following a report of loud music and gunshots fired. At the scene, police discovered defendant and another man, Lawrence Robertson, on the sidewalk with gunshot wounds. Both men were transported to the hospital; Robertson succumbed to his wounds, dying on September 1, 2008. The hospital treated and subsequently discharged defendant. On December 2, 2008, police arrested defendant at his residence.
Defendant remained incarcerated following this arrest. On February 20, 2009, a different judge sentenced defendant to a five-year term of imprisonment for an unrelated conviction, which stemmed from defendant's May 31, 2007 arrest on a drug charge.
On May 18, 2010, a Hudson County grand jury returned an indictment, charging defendant with first-degree gang criminality, N.J.S.A. 2C:33-29(a) (count one); conspiracy to commit first-degree murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count two); first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count nine); second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4(a) (count ten); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count eleven). The indictment named eleven other individuals as co-defendants.
On February 27, 2012, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as an amended charge of count nine. In his plea colloquy, defendant affirmed he had sufficient time to discuss his case with counsel, and he understood his plea agreement provided for him to receive a ten-year prison term, with a period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He acknowledged his decision to enter a guilty plea after the State rejected counsel's counteroffer for a lower sentence. Defendant then admitted to engaging in a physical altercation with Robertson on the night in question, during which he fired a gunshot at Robertson, causing his death.
On May 24, 2012, the trial judge sentenced defendant to ten years of imprisonment, subject to the eighty-five percent period of parole ineligibility imposed by NERA. During sentencing, defense counsel requested the judge convert defendant's 1182 days of gap-time credit to jail credit. However, the judge found defendant eligible for jail credit only for the period between his December 2008 arrest and his February 20, 2009 sentence for the drug charge. As such, after adjusting defendant's gap-time by 80 days, the judge granted defendant 167 days of jail credit and 1102 days of gap-time credit.
Defendant did not file a direct appeal. However, on May 9, 2014, defendant filed a pro se petition for PCR, arguing his assigned trial counsel was ineffective. In his certification supporting PCR, defendant alleged he told counsel his actions were in self-defense, and he was not guilty; however, counsel neglected his case and failed to follow up or investigate his claim. He asserted counsel failed to discuss the discovery with him, and otherwise failed to provide him with all relevant materials.
Defendant further claimed he was pressured "to either take the plea deal or sign my trial papers, a decision which I had to make in a matter of minutes." He stated he was innocent and was "willing to take the case to trial." Last, defendant claimed he "was given incorrect advice regarding my sentence." Defendant asserted:
According to my plea agreement, I was supposed to have been awarded Gap Time credits toward my sentence but because I was sentenced under the NERA Act, gap-time does not apply to my sentence. Therefore, this should be considered an unlawful sentence. I was not informed by either the judge or my counsel that the sentence I was pleading to would make my getting those credits impossible.
On July 9, 2015, the PCR judge held an evidentiary hearing, where defendant and his trial counsel testified. Counsel said she gave defendant the discovery relating to the allegations against him, which she then reviewed with him. According to counsel, defendant told her he did not shoot the victim at all, and he never raised the issue of self-defense. Counsel said she was in the process of preparing the case for trial, but defendant ultimately decided to plead guilty. Defendant told her, "I am going to plead guilty. I am resolving this case. I worked out my situation, my credit. I have a child to get home to."
This was the same judge that conducted defendant's plea hearing and sentencing. --------
Defendant testified that on the day of his plea, counsel told him the prosecutor offered ten years of imprisonment, down from the previous offer of twenty-five years, but if he did not "take it now," the prosecutor would raise the offer to thirty years. He claimed counsel said, "[T]he Prosecutor's also rewarding (sic) you your Gap Time credit and Jail credits. You're only going to have to do five years." Defendant further stated he "felt like [counsel] didn't want me to go to trial," and she did not provide him with the discovery relating to his co-defendants. He claimed he accepted the plea deal because he did not have confidence in his attorney.
Following the testimony and oral argument, the PCR judge denied relief. He found "the fact that the State indicated the offer would not remain open beyond that particular day is of no moment," noting defendant had made a counteroffer to the State prior to this offer. As such, the judge determined defendant's "assertions with respect to innocence and coercion on the day of the plea" were "incredible under the circumstances." He further found counsel provided defendant with the relevant discovery and reviewed the matter with defendant prior to his plea.
The judge then addressed defendant's sentencing argument, noting the law required he award gap-time credits. The judge found it was made clear at defendant's plea hearing the law required him to serve eighty-five percent of his sentence without parole eligibility. The judge noted it was "of no moment" that defendant did not receive the sentence he expected because he misunderstood the gap-time credits. Last, the judge found defendant's testimony was not credible because of the discrepancies between his plea colloquy and present testimony, which suggested he lied under oath on one of those occasions. He therefore concluded defendant failed to satisfy the test for ineffective assistance of counsel.
This appeal followed. On appeal, defendant presents the following arguments:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE PCR COURT'S FINDINGS, WHICH WERE BASED SOLELY ON ITS BELIEF THAT TRIAL COUNSEL COULD NOT HAVE BEEN INEFFECTIVE SINCE DEFENDANT WAS THE RECIPIENT OF A LENIENT SENTENCE RECOMMENDATION, WERE CONTRARY TO STRICKLAND V. WASHINGTON STANDARDS.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE NEW JERSEY CODE OF CRIMINAL JUSTICE TO BE GIVEN CREDIT FOR TIME SERVED WAS VIOLATED WHEN HE WAS AWARDED 1102 "GAP TIME" DAYS CREDIT INSTEAD.
POINT III
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
The standard of review for a PCR proceeding is "necessarily deferential to a PCR court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). We will affirm the PCR court if sufficient credible evidence in the record supports the judge's findings. Ibid. However, we review a PCR court's interpretation of the law de novo. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The defendant carries the burden to establish the right to relief by a preponderance of credible evidence. State v. Echols, 199 N.J. 344, 357 (2009).
The United States Supreme Court set forth the standard for claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Our Supreme Court adopted this standard in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet a two-prong test. First, the defendant must show 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. Second, the defendant must show the defect in performance prejudiced his or her rights to a fair trial such that there exists "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 698.
We apply a similar standard in the context of guilty pleas. To prove ineffective assistance of counsel, the defendant must show "(i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) '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.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Defendant argues the PCR judge erred in his application of the Strickland test. Specifically, defendant contends the judge relied "solely on [his] belief that defendant was the recipient of a lenient sentence recommendation." In support of this argument, defendant quotes the following statements from the PCR judge:
As far as the circumstances surrounding the plea is concerned, it is not surprising to me that while the offer . . . to plead guilty had been in the 25 to 30 year range and, on this particular day, for whatever reason, the State was prepared to reduce the offer by 15 to 20 years, at that point he took advantage of that plea.
Now that, in all likelihood, had something to do with [trial counsel's] representation of him and clearly inured to his benefit. . . .
. . . .
Therefore, there is no support to the [d]efendant's arguments that he satisfied either prong of the [Strickland] test. He has not demonstrated that [c]ounsel was ineffective, nor has he demonstrated that anything [c]ounsel did in any way affected the outcome of his case, other than to show that [c]ounsel was able to negotiate a plea
that saved him at least 20 years which most people consider to be very effective.
So, I'm satisfied the [d]efendant has not satisfied either prong and the Petition is denied.
Defendant argues his various allegations of ineffective assistance warranted relief under Strickland, most notably counsel's failure to conduct adequate pretrial investigation, failure to review the discovery with defendant, and pressuring defendant to plead guilty despite his claimed innocence. We disagree.
First, contrary to defendant's assertion, the record shows the PCR judge did not base his decision on the purportedly favorable plea agreement. Instead, the judge found no basis for defendant's claim of coercion because defendant first made a counteroffer, which the State rejected. He found counsel and defendant reviewed the relevant discovery and potential defenses prior to entering the plea. The judge further determined defendant's testimony was not credible because he lied under oath.
Moreover, the record of the plea hearing shows defendant entered into his plea voluntarily and knowingly. Defendant admitted under oath to committing the crime charged, and he stated he discussed his case with counsel to his satisfaction. He decided to enter a guilty plea after the State rejected his counteroffer. Although defendant may have initially told counsel he was innocent, counsel testified defendant ultimately made the decision to plead guilty. The judge found this testimony credible. Therefore, given our deferential standard of review, we find no basis to disturb the conclusion of the PCR judge that defendant failed to prove both prongs of the Strickland test.
Defendant also raises a due process argument, contending the sentencing judge violated his Fourteenth Amendment rights by awarding him 1102 days of gap-time credit instead of jail credit for time served. He urges us to remand for resentencing. We disagree.
Our court rules authorize jail credits "for any time served in custody . . . between arrest and the imposition of sentence." R. 3:21-8. Jail credits "are applied to the 'front end' of a defendant's sentence, meaning that he or she is entitled to credit against the sentence for every day defendant was held in custody for that offense prior to sentencing." State v. Hernandez, 208 N.J. 24, 37 (2011), overruled in part on other grounds, State v. C.H., ___ N.J. ___ (2017). "[O]nce the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8." Hernandez, supra, 208 N.J. at 50.
Conversely, N.J.S.A. 2C:44-5(b) governs gap-time credit. Hernandez, supra, 208 N.J. at 38. This statute "awards a defendant who is given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." Ibid. A defendant is entitled to gap-time credit when "(1) the defendant has been sentenced previously to a term of imprisonment[;] (2) the defendant is sentenced subsequently to another term[;] and (3) both offenses occurred prior to the imposition of the first sentence." Ibid. (alterations in original) (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). "If the defendant meets those requirements, the sentencing court is obligated to award gap-time credits." Ibid. "Unlike jail credits, gap-time credits are applied to the 'back end' of a sentence." Ibid. (quoting Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994)). Gap-time credit will not reduce the period of parole ineligibility imposed by NERA. Id. at 41.
Applying this standard, we find no basis to reverse the PCR judge. Defendant was entitled to gap-time credit because (1) the court sentenced him for the drug conviction in February 2009, (2) the court then sentenced him for the manslaughter conviction in May 2012, and (3) both offenses occurred prior to the imposition of the February 2009 sentence. Ibid. As such, the PCR judge correctly determined no error occurred regarding the award of gap-time credits, nor did plea counsel fail to represent defendant competently regarding the award of such credits.
Moreover, we reject defendant's contention that counsel and the judge failed to inform him on this issue, thereby causing an unlawful sentence. During his plea colloquy, defendant stated he understood the law required he serve eighty-five percent of his sentence without parole eligibility. Therefore, the PCR judge appropriately rejected defendant's claim he misunderstood his sentence. The judge correctly determined defendant failed to satisfy either prong of the Strickland standard.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION