Opinion
DOCKET NO. A-4706-13T4
06-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEPHEN RUARK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-05-1105. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Stephen Ruark appeals from the October 25, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We reverse and remand for such a hearing.
Defendant was indicted for first-degree carjacking by inflicting bodily injury, N.J.S.A. 2C:15-2(a)(1) (count one); first-degree carjacking by the use of force, N.J.S.A. 2C:15-2(a)(1) (count two); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count five); fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count six); third-degree resisting arrest by force, N.J.S.A. 2C:29-2(a)(3)(a) (count seven) and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count eight).
After trial began, defendant decided to plead guilty to count two, first-degree carjacking by use of force, which carries a penalty of between ten and thirty years in prison. N.J.S.A. 2C:15-2(b). The remaining counts were dismissed and the judge indicated in a "Supplemental Plea Form For Non-Negotiated Pleas" that he would impose a sentence of eleven years in custody with an eighty-five percent parole disqualifier, pursuant to N.J.S.A. 2C:43-7.2. Because defendant was intoxicated at the time of the carjacking, as part of the factual basis for the plea he agreed that the police report of the arresting officer was accurate. That report indicated that the plain-clothed officer observed defendant try to carjack a car with a knife in a mall parking lot. The officer scared defendant off and chased him down, ultimately arresting him with the assistance of other officers.
Defendant appealed his sentence and raised the issue that he pled guilty because the State had agreed not to move for an extended term after his lawyer improperly led him to believe that he was eligible for an extended term. He supports his argument with the fact that the plea form indicated "yes" next to question 14b, "Has the prosecutor promised that he or she will NOT: Seek an extended term of confinement?" The State responded that such an argument is more appropriate to be raised in the context of an argument for relief in the context of a petition for PCR. In response to his subsequently-filed PCR petition, the State argued that the Pre-trial Memorandum, prepared approximately seven weeks before the guilty plea and signed by defendant, indicated that he was not eligible for an extended term. Thus the two documents appear to be in conflict.
On appeal, defendant raises the following issues:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA ON THE BASIS THAT HE HAD FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE DEMONSTRATING THAT THE GUILTY PLEA INTO WHICH HE ENTERED WAS NOT MADE FREELY, KNOWINGLY AND VOLUNTARILY AS A RESULT OF INACCURATE INFORMATION PROVIDED TO HIM BY TRIAL COUNSEL WITH RESPECT TO THE NATURE AND EXTENT OF JAIL CREDITS TO WHICH HE WOULD BE ENTITLED AT SENTENCING, THE POST CONVICTION RELIEF COURT ERRED IN DENYING HIS PETITION SEEKING TO WITHDRAW HIS GUILTY PLEA WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.
Although the point heading discusses jail credits, the substance of the legal argument concerns defendant's claim that his lawyer told him he was eligible to be sentenced to an extended term.
A review of a claim of ineffective assistance of counsel is conducted under the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must demonstrate both that his counsel's performance was deficient and that a reasonable probability exists that with the effective assistance of counsel the result would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A defendant must demonstrate his right to relief by a preponderance of the credible evidence, and must demonstrate his right to an evidentiary PCR hearing by establishing a prima facie case. R. 3:22-10(b); State v. Preciose, 129 N.J. 451, 462-63 (1992). When determining the propriety of conducting an evidentiary hearing, the PCR court should view the facts in the light most favorable to the defendant. State v. Jones, 219 N.J. 298, 311 (2014) (citation omitted). If the PCR claim has a reasonable probability of succeeding, then the defendant should receive an evidentiary hearing in order to prove his entitlement to relief. Ibid. However, merely filing a PCR claim does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If the PCR court does not hold an evidentiary hearing, an appellate court will "conduct a de novo review." State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Pursuant to our de novo review, we are persuaded that defendant has presented a prima facie case and is entitled to an evidentiary hearing.
We therefore reverse and remand for such a hearing. 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