Opinion
DOCKET NO. A-0180-14T4
04-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARYL NORMAN, a/k/a DARYL M. NORMAN, WILLIAM M. BRYANT, DARYL VENEY, and DARYL M. VENEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-02-0130. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief). PER CURIAM
Defendant Daryl Norman appeals from the June 24, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. For the following reasons, we affirm.
We derive the following facts from the record. A grand jury indicted defendant on seven counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree robbery, N.J.S.A. 2C:15-1; and one count of third-degree eluding, N.J.S.A. 2C:29-2(b). The charges stemmed from several armed robberies. Except for two robberies that occurred on the same day at different locations, all other robberies occurred on different days and at different locations.
Defendant has a lengthy criminal history. He was adjudicated as a delinquent twenty-two times, which resulted in several terms of incarceration at the West Jersey Training School for Boys in Jamesburg. As an adult, defendant had eight indictable convictions, which resulted in several terms of incarceration in State prison. At the time of sentencing in this matter, defendant was serving a twelve-year term of imprisonment subject to six years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), for his conviction for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was eligible for a discretionary extended-term sentence if convicted on one count in this matter. He also faced consecutive sentences if convicted on more than one count, and the sentence could have been made consecutive to his other sentence.
Defendant agreed to plead guilty to one count of first-degree robbery and pay restitution on all counts. In exchange, the State agreed to dismiss the remaining counts and recommend a ten-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent to defendant's other sentence. On April 15, 2013, defendant entered his guilty plea before Judge Walter L. Marshall, Jr., who had presided over pre-plea proceedings and was familiar with the facts of the case. Defendant acknowledged, under oath, that the sentence was subject to an eighty-five percent period of parole ineligibility pursuant to NERA and he must serve eight years and six months before being eligible for parole.
On June 3, 2013, Judge Marshall sentenced defendant in accordance with the plea agreement and reiterated that the sentence was subject to NERA. The judge awarded defendant 212 days of jail credits and 913 days of gap time credits, and ordered him to pay restitution.
Defendant did not appeal. Instead, on June 25, 2013, he filed a pro se PCR petition. In his pro se brief, he argued that trial counsel rendered ineffective assistance by misinforming him that the gap time credits would be applied to reduce the ten-year base term by 913 days, and that but for this error, he would have asked the court to apply these credits in some other way to reduce his actual sentence, or if this option were unavailable, he would have insisted on going to trial. In assigned counsel's brief, defendant added that trial counsel never advised him that the time running from his other sentence would be treated as gap time credits that applied only to the back end of his ten-year base term in this matter. Defendant claimed that instead, counsel incorrectly advised him that the time served following his other sentence would be applied directly to his sentence in this matter and not as gap time, so that his release date would be shortened accordingly.
In a June 24, 2014 oral opinion, Judge Marshall denied the PCR petition. The judge found that counsel's performance was not deficient because defendant was not entitled to time spent in custody, but was only entitled to gap time credits, which he received. The judge determined that even if counsel's performance was deficient, defendant suffered no prejudice. The judge explained that
defendant was facing . . . an onerous number of days in jail, consecutive time, even if there was only one conviction would certainly have been meted out, consecutive to the time that he was [then] serving. If he [was] convicted on two different counts
. . . he would have had consecutive time, both with the prior sentence he was [then] serving, as well as what he was found guilty of.The judge emphasized that given defendant's extensive criminal record, he received "an extremely beneficial deal" and that it was "beyond credibility that he would have rejected the [p]lea [a]greement and gone to trial." This appeal followed. On appeal, defendant reiterates the arguments made to Judge Marshall.
And, here he was able to plead guilty to one robbery, receive the . . . lowest end of a first-degree sentence, and run it concurrent with a significant sentence he was already [serving].
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). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant
must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls]
below an objective standard of reasonableness.With respect to a guilty plea, our Supreme Court has explained that
Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in original) (citations omitted).]
[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (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.We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. Preciose, supra, 129 N.J. at 462. We discern no abuse of discretion here.
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
Contrary to jail credits awarded pursuant to Rule 3:21-8, where the credit is applied to the front end of a sentence, gap time credit is applied to the back end of the aggregated sentences. Gap time credit may not be used "to reduce a judicial or statutory parole bar by a 'front-end' reduction of [the] aggregated sentences." Richardson v. Nickolopoulos, 110 N.J. 241, 255 (1988) (Richardson II). Nor may gap time credit be applied to reduce the eighty-five percent parole ineligibility period mandated by NERA. Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 429 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002). As we explained:
[A] judicially imposed period of parole ineligibility . . . is not reduced by gap time. In our view, the Legislature has spoken in clear and unambiguous terms that a person convicted of a NERA offense must serve eighty-five percent of the sentence imposed before becoming eligible for release.
[Id. at 430 (citations omitted).]
Here, defendant does not contend he was unaware his sentence was subject to NERA or that NERA did not apply. Thus, whether he pled guilty or was convicted after trial, he was not entitled to jail credits, but only to gap time credits that would be applied to the back end of any sentence imposed. To apply the credits in any other way would render the sentence illegal.
In addition, defendant does not assert his innocence or dispute he was eligible for an extended-term sentence and subject to consecutive sentences. Accordingly, even if trial counsel misinformed or failed to advise defendant of the concept of gap time credits, defendant suffered no prejudice by pleading guilty, as he received "an extremely beneficial" sentence that was well below the range for an extended-term sentence for a first-degree crime.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION