Opinion
DOCKET NO. A-1073-12T1
03-10-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DONELLE ROBINSON, a/k/a DARNELL ROBINSON, DONELE ROBINSON, Defendant-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-06-1937.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Donelle Robinson appeals from a March 26, 2012 order denying his petition for post-conviction relief. We affirm the denial of the petition with respect to the imposition of sentence, but remand for the limited purpose of re-calculating the jail credits to which defendant is entitled and entering an amended judgment of conviction (JOC).
In 2007, defendant was indicted for three counts of first-degree robbery. He was also facing a violation of probation (VOP) charge for committing three robberies while he was on probation. Pursuant to a plea agreement, on December 23, 2008, defendant stipulated that he was extended-term eligible, and pled guilty to one count of second-degree robbery, in return for a recommended extended term of fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The plea form specifically provided that defendant would also receive a concurrent sentence for the VOP. That term of the agreement was confirmed on the record at the plea hearing, during which defendant acknowledged that, having pled guilty to committing a robbery while on probation, he was guilty of a VOP as a matter of law.
On February 6, 2009, the trial judge sentenced defendant, in accordance with the plea agreement, to fifteen years subject to NERA for second-degree robbery, plus five years of parole supervision, and a concurrent three-year "flat" term for the VOP. On the record, the judge also stated that defendant would be entitled to 981 days of jail credit; the prosecutor agreed that the judge's calculation of the jail credits was correct. However, the JOC that the judge signed on February 10, 2009 only gave defendant 640 days of jail credit.
The judge stated at the plea hearing that defendant would receive a five-year term for the VOP, but imposed a three-year term at the sentencing hearing. The parties did not provide us with the judgment of conviction for the VOP.
Defendant did not file a direct appeal of his sentence, but he filed a PCR petition in 2011. Defendant asserted that his trial counsel failed to argue mitigating factors at the sentencing hearing, that his trial counsel neglected to file a direct appeal on his behalf, that NERA did not apply to the robbery charge, and that the five-year period of parole supervision was an illegal sentence.
The PCR petition was heard by a judge (the PCR judge) who had not imposed the sentence. At the oral argument of the petition, the judge specifically asked PCR counsel to identify any mitigating factors that trial counsel could have presented to the sentencing judge; PCR counsel was unable to specify any mitigating factors. In an oral opinion on March 26, 2012 the PCR judge found no support in the record for defendant's claims that there were applicable mitigating factors that the sentencing judge did not consider; that trial counsel should have argued mitigating factors; or that there was a basis for a direct appeal. Although the PCR judge also found no proof that defendant asked his trial counsel to file an appeal, he noted that defendant could still seek to file a direct appeal out-of-time.
Addressing the sentence, the PCR judge found that NERA applied to the offense to which defendant pled guilty and hence the NERA aspect of the sentence was not illegal. However he also found it was error to sentence defendant to a five-year period of post-release parole supervision, because the charge to which he pled guilty had been amended to a second-degree charge. In the March 26, 2012 order, the PCR judge reduced defendant's period of parole supervision to three years. However, he did not enter an amended JOC.
On this appeal, defendant raises the following points for our consideration:
POINT ONE - DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF.
A. Ineffective Assistance of Trial Counsel at Sentencing.
B. The Failure to File an Appeal.
POINT TWO - DEFENDANT'S POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
Relying on State v. Hess, 207 N.J. 123, 154 (2011), defendant once again argues that his trial counsel failed to argue mitigating factors at sentencing, and failed to argue against the imposition of an extended term. However, defendant fails to specify a single mitigating factor that his trial attorney should have argued. To establish his right to relief under the Strickland test, defendant must show not only that his attorney rendered ineffective assistance of counsel, but that the attorney's substandard representation prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987). Unlike Hess, because there were no available mitigating factors for counsel to argue, defendant failed to satisfy the second Strickland prong. See Hess, supra, 207 N.J. 154.
Defendant also asserts, for the first time on this PCR appeal, that the sentencing judge failed to explain why he was imposing an extended term or why he selected fifteen years as opposed to some other term within the extended sentencing range. See State v. Pierce, 188 N.J. 155, 169-70 (2006). Defendant's argument is barred on this appeal because it could have been raised on a direct appeal, Rule 3:22-4, and it was not presented to the PCR judge. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Consequently, we decline to address the issue on this appeal.
Because defendant produced no legally competent evidence that he asked his trial counsel to file a direct appeal, we find no error in the PCR judge's decision to reject that claim of ineffective assistance. See State v. Cummings, 321 N.J Super. 154, 170 (App. Div.) ("bald assertions" are insufficient to support an ineffective assistance claim), certif. denied, 162 N.J. 199 (1999). Although defendant claims that he was adjudicated guilty of the VOP without entering a formal guilty plea, we find no reversible error on this record. Defendant signed a plea form that included the VOP, and at the plea hearing he admitted, albeit briefly, what was indisputable — by pleading guilty to committing a robbery while on probation, he was likewise admitting to the VOP. Finally, he received a concurrent term for the VOP and therefore will serve no additional prison time for that conviction. Hence, even if defense counsel were ineffective in failing to raise the issue, defendant was not prejudiced by the omission.
Finally, defendant argues that the JOC should have been amended to reflect 981 days of jail credit instead of 640. This is a very significant issue for defendant. While his PCR attorney did not argue that issue at the PCR hearing, he did note it in the PCR brief. The PCR judge did not address the issue. Nor does the State's brief on this appeal. Because the number of jail credits in the JOC is inconsistent with the number of credits awarded on the record at sentencing, we remand this matter to the trial court to reconsider the issue, determine the correct number of jail credits, and enter an amended JOC accordingly. The amended JOC should also reflect the imposition of a three-year period of parole supervision, rather than five years.
If the parties can agree on the appropriate number of jail credits, they should promptly notify the trial court in writing.
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Affirmed in part, remanded 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