Opinion
DOCKET NO. A-1069-14T1
02-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMA SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John J. Hoffman Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-03-0226. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John J. Hoffman Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Jama Smith appeals from an order entered by the Law Division on July 24, 2014, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
The facts and procedural history in this matter were previously summarized in our decision on defendant's direct appeal, State v. Smith, No. A-0028-05 (App. Div. Oct. 17, 2007) (Smith I), in which we affirmed defendant's convictions but remanded for resentencing. After granting defendant's petition for certification solely on his conviction for possession of a defaced firearm, the Supreme Court further detailed the facts in its affirmance of defendant's conviction. State v. Smith, 197 N.J. 325 (2009). We again recounted the facts in our decision affirming the trial court's resentencing of defendant. State v. Smith, No. A-1795-08 (App. Div. July 28, 2011) (Smith II). We briefly restate the facts pertinent to this appeal.
On October 6, 2002, City of Paterson police officers observed defendant and another male engage in a hand-to-hand narcotics transaction. The officers approached the two men and directed them to stop, but they walked away. Defendant was seen dropping a plastic bag. The officers retrieved it and determined it contained what they believed was crack cocaine.
The officers again directed defendant to stop, but defendant fled. During the ensuing foot chase, defendant pulled out a handgun. One of the officers pointed his handgun at defendant and repeatedly directed defendant to drop his weapon. The officer tackled defendant to the ground, and defendant resisted by flailing his arms and legs. As the officer attempted to place defendant under arrest, defendant's handgun slid under a nearby vehicle. It was retrieved by the other officer, who observed that its serial number had been scratched off.
Defendant was charged in an indictment with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) and -1(b)(5)(a) (counts four and five); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (count six); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(1) (count seven); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(c) (count nine); second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C:39-4.1 (count ten); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count eleven); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count twelve).
On April 26, 2004, the trial court conducted a pretrial conference pursuant to Rule 3:9-1(g). Defendant was questioned by counsel and stated that he reviewed the pretrial memorandum with counsel, initialed each of its pages and signed it. Defendant acknowledged that he faced a maximum custodial sentence of fifty-eight years "excluding any extended terms" if he proceed to trial and was convicted of all of the offenses in the indictment. The pretrial memorandum reflected that defendant's maximum sentence was sixty-three years, which included a "possible extended term" of five years for defendant's possession of CDS within 1000 feet of a school offense. N.J.S.A. 2C:43-6(f).
In response to questioning by his trial counsel, defendant said he understood that if he proceeded to trial and was convicted of all of the charges, the court would impose a three-year period of parole ineligibility on the two fourth-degree aggravated assault charges under the Graves Act, and additional five-year periods of parole ineligibility for the possession with intent to distribute and certain persons charges. The pretrial memorandum contained conflicting information regarding defendant's maximum potential period of parole ineligibility. Consistent with counsel's questioning of defendant, paragraph numbered five of the pretrial memorandum reflected that defendant's maximum period of parole ineligibility was thirteen years. In his response to paragraph numbered six, however, defendant acknowledged the court could impose a period of parole ineligibility of up to "one-half of the total sentence imposed," or up to one-half of the sixty-three years the memorandum indicated was defendant's maximum sentencing exposure.
N.J.S.A. 2C:43-6(c).
Defendant understood the State's plea offer was that in exchange for guilty pleas to counts three, four, five, six, eight, and twelve, the State would recommend that the court impose an aggregate custodial sentence of ten years, with a five-year period of parole ineligibility. In addition, the State agreed to recommend a consecutive eight-year sentence without any period of parole ineligibility in exchange for a guilty plea to count ten. Defendant's aggregate sentencing exposure under the proposed plea agreement was eighteen years, with a five-year period of parole ineligibility.
Defendant advised the court that he rejected the offer and wished to proceed to trial. During the Rule 3:9-1(g) proceeding the court advised defendant that there had been discussions that day about a different offer, pursuant to which the State would recommend a maximum aggregate sentence of nine years, with a fifty-four month period of parole ineligibility. Defendant indicated he was not interested in the offer and no further details regarding it were placed on the record. The court entered the pretrial memorandum and scheduled the case for trial.
At trial, defendant testified on "his own behalf and denied all of the allegations against him, including having a gun or narcotics in his possession, threatening the police officers with a gun, engaging in a hand-to-hand drug sale, and struggling" with the officer at the time of his arrest. Smith I, supra, slip op. at 7. Defendant admitted fleeing from the scene, but explained it was because he "feared he would be arrested for warrants for unpaid parking tickets." Ibid.
Defendant was found not guilty on counts four, five, and six, and guilty of the nine remaining charges. Prior to sentencing, the State moved to sentence defendant to extended terms of imprisonment under count three as a prior drug distribution offender pursuant to N.J.S.A. 2C:43-6(f), and under count eight as a prior Graves Act offender pursuant to N.J.S.A. 2C:43-6(c).
At sentencing on November 12, 2004, defendant's counsel opposed the request for imposition of the extended terms in part because defendant was not fully advised of his exposure to the extended terms at the Rule 3:9-1 conference and in the pretrial memorandum. The court rejected the argument, granted the State's motion for the extended terms, and imposed an aggregate sentence of forty years with a twenty-year period of parole ineligibility. Defendant appealed.
In our decision on defendant's direct appeal, we noted the court imposed an aggregate sentence of forty years, with a twenty-year period of parole ineligibility. Smith I, supra, slip op. at 3. The November 12, 2004 judgment of conviction, however, incorrectly reflected an aggregate sentence of forty-years, with a fifteen-year period of parole ineligibility. The "clerical error" as to the period of parole ineligibility was corrected on May 14, 2010, and defendant's challenge to the sentence was rejected on appeal. Smith II, supra, slip op. at 10-12.
We affirmed defendant's convictions and remanded for reconsideration of the entire sentence under State v. Natale, 184 N.J. 458 (2005), and for reconsideration of the imposition of the consecutive sentence on count twelve. Smith I, supra, slip op. at 25. The Supreme Court granted defendant's petition for certification "limited solely to reviewing defendant's claim that, to convict under N.J.S.A. 2C:39-3(d), the State must prove a defendant's knowledge of possession of the weapon and knowledge of the weapon's defacement." Smith, supra, 197 N.J. at 330 (citing State v. Smith, 193 N.J. 584 (2008)). The Supreme Court affirmed defendant's conviction. Id. at 339.
Defendant subsequently filed a PCR petition alleging he received ineffective assistance of counsel because his trial attorney failed to accurately inform him of the maximum period of parole ineligibility he faced if he proceeded to trial and was convicted of all of the charges. Defendant certified that had he known he could receive twenty years of parole ineligibility, rather than the thirteen years discussed during the Rule 3:9-1 proceeding and in paragraph numbered five of the pretrial memorandum, he would have accepted the State's plea offer instead of going to trial.
After hearing oral argument, the PCR court entered an order denying defendant's petition without an evidentiary hearing. Defendant appealed.
II.
On appeal, defendant raises the following issues:
POINT I:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.
POINT TWO:
THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE AS A RESULT OF COUNSEL'S FAILURE TO ACCURATELY INFORM HIM WITH RESPECT TO THE MAXIMUM PAROLE DISQUALIFIER HE WAS FACING WITH RESPECT TO THE STATE'S PLEA OFFER, HE REJECTED THE PLEA RECOMMENDATION AND INSTEAD
PROCEEDED TO TRIAL, SUBSEQUENTLY RECEIVING A SENTENCE SIGNIFICANTLY GREATER THAN THAT EMBODIED IN THE PLEA OFFER.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his defense. The right to counsel includes "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. "First, the defendant must show that counsel's performance was deficient." State v. Taccetta, 200 N.J. 183, 193 (2009) (quoting Fritz, supra, 105 N.J. at 52). "Second, the defendant must show that the deficient performance prejudiced the defense." Ibid. Defendant must prove both prongs by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
To establish the first prong, it must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness," and that "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 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Gaitan, supra, 209 N.J. at 349-50. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 46 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95).
To satisfy the second prong, a defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (alteration in original) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)). A defendant must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52. A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
A PCR court need not grant an evidentiary hearing unless "a defendant has presented a prima facie [case] in support of post-conviction relief." State v. Marshall, 148 N.J. 89, 158 (alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992 )), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her [ineffectiveness] claim will ultimately succeed on the merits." Ibid. The court must view the facts "in the light most favorable to defendant." Ibid. (quoting Preciose, supra, 129 N.J. at 462-63).
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 420 (2004) (citing Micken-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Ibid. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421. We apply that standard here.
We first address defendant's contention that the PCR court erred in rejecting the claim that his trial counsel was ineffective by failing to accurately inform him regarding the maximum period of parole ineligibility he faced if convicted of the charges after trial. Defendant asserted that if he had been accurately informed of the maximum period of parole ineligibility, he would have accepted the State's plea offer and not proceeded to trial.
We are convinced the PCR court properly rejected defendant's argument and denied the petition. Where it is claimed that trial counsel's mistaken advice regarding potential sentencing exposure caused a defendant to reject a plea offer and proceed to trial, the defendant establishes prejudice under the second prong of the Strickland standard by demonstrating that he would have accepted the plea offer if he had been aware of his sentencing exposure, that his guilty plea would have been accepted by the court, and that the conviction and sentence he would have received under the plea offer would have been less severe than those resulting from the trial. Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 1385, 182 L. Ed. 2d 398, 407 (2012).
As the PCR court correctly found here, even assuming trial counsel had accurately advised defendant he could receive a twenty-year period of parole ineligibility, the court could not have accepted the proposed plea agreement because defendant could not have provided a factual basis supporting convictions for the offenses to which he was required to plea under the agreement. Defendant maintained his innocence throughout the matter and testified under oath at trial that he did not possess CDS or the handgun, did not point a handgun at the officers, did not resist arrest, and did not engage in a hand-to-hand drug transaction.
Because defendant failed to establish prejudice under the second prong of the Strickland standard, it was unnecessary for the PCR court to resolve the issue of whether defendant's response in paragraph numbered six on the pretrial memorandum provided adequate notice that he faced a twenty-year period of parole eligibility if convicted of all of the charges at trial. --------
The Supreme Court has stated:
If a trial court cannot accept a guilty plea that is known to be false, then it would be strange indeed for a PCR court to vacate a jury verdict following a fair trial on the ground that defendant would have taken an advantageous plea offer with a limited sentence exposure if only he had been given the opportunity to lie under oath. A court cannot give its imprimatur to perjury or in any way suggest that the requirement of a truthful factual basis at a plea colloquy is an empty formality.Our court rules require that there be a factual basis supporting a plea of guilty and that, to accept a guilty plea, "a judge must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Id. at 196 (quoting State v. Slater, 198 N.J. 145, 155 (2009)).
[Taccetta, supra, 200 N.J. at 197.]
"Even if a defendant wished to plead guilty to a crime he or she did not commit, he or she may not do so. No court may accept such a plea." Taccetta, supra, 200 N.J. at 196 (quoting State v. Smullen, 118 N.J. 408, 415 (1990)). Defendant here could not have entered a plea of guilty to any of the charges pursuant to the State's plea offer, "for the simple reason that a defendant does not have the right to commit perjury in giving a factual basis for a crime he insists he did not commit." Id. at 194. He denied under oath at trial committing all of the offenses charged in the indictment. Even assuming defendant satisfied "the first prong of the Strickland/Fritz standard — that his counsel was constitutionally ineffective for giving him mistaken advice about the sentencing consequences of proceeding to trial — defendant [did not] satisfy the second prong of that standard, which require[ed] a showing of prejudice" because the court could not have accepted defendant's guilty plea. Id. at 194-95.
We are convinced the PCR court correctly found that defendant did not demonstrate prejudice under the second prong of the Strickland standard and, as a result, did not establish a prima facie case of ineffective assistance of counsel. Defendant was therefore not entitled to an evidentiary hearing. Marshall, supra, 148 N.J. at 158.
We also reject defendant's argument that the court erred in finding that the PCR petition was time barred under Rule 3:22-12. Rule 3:22-12(a) requires a defendant to file a petition for PCR within five years of the entry of the judgment or sentence unless the defendant shows that the delay "beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions [are] found to be true enforcement of the time bar would result in a fundamental injustice." "The[] time limitation[] shall not be relaxed, except as provided" in Rule 3:22-12. R. 3:22-12(c); see R. 1:3-4(c) ("Neither the parties nor the court may [] enlarge the time specified by . . . R. 3:22-12.").
Defendant's judgment of conviction was entered on November 12, 2004, and his PCR petition was required to have been filed by November 12, 2009. Defendant filed his petition on March 17, 2010, four months beyond the deadline contained in Rule 3:22-12. Defendant acknowledges that the five-year time bar commenced upon the entry of his judgment of conviction and was neither tolled nor stayed by the prior appellate proceedings. See, e.g., State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996). He contends, however, that his failure to timely file the petition should be excused under Rule 3:22-12(a)(1) because he appeared pro se and the attorneys who represented him on his various direct appeal proceedings did not advise him of the deadline for filing a PCR petition. We disagree.
Defendant's pro se status does not provide a basis to permit his late filing of his PCR petition. Any claimed "[i]gnorance of the law and rules of court does not qualify as excusable neglect." State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) (citing State v. Murray, 162 N.J. 240, 246 (2000)), aff'd o.b., 365 N.J. Super. 82, 84 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
We do not consider defendant's contention that the purported failure of his direct appeal counsel to advise him of the filing deadline constitutes excusable neglect under Rule 3:22-12. We cannot consider defendant's argument because it is founded upon facts which are not supported by an affidavit or certification. See State v. Jones, 219 N.J. 298, 312 (2014) ("[T]he Court Rules [] require that factual assertions in a petition for post-conviction relief be made by affidavit or certification in order to secure an evidentiary hearing."); R. 3:22-10(c).
Moreover, we decline to consider the argument because it was not raised below and does not involve jurisdictional or public interest concerns. Zaman v. Felton, 219 N.J. 199, 226-27 (2014); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960))).
Even assuming defendant made a showing of excusable neglect under Rule 3:22-12(a)(1), he failed to demonstrate that enforcement of the time bar would result in a fundamental injustice. Defendant could not demonstrate a fundamental injustice because, as noted, he failed to establish a prima facie case of ineffective assistance of counsel under 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