Opinion
DOCKET NO. A-0793-12T1
07-25-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. DAVON FORBES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-09-1231.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Davon Forbes appeals from the denial without a hearing of his petition for post-conviction relief (PCR). He claims ineffective assistance of counsel at his sentencing after violating his Drug Court special probation. We affirm.
I.
On May 19, 2008, defendant was arrested selling crack cocaine and heroin near a public school. He was charged with eight drug counts, but received a plea bargain allowing him to proceed in Drug Court pursuant to N.J.S.A. 2C:35-14. He pled guilty to one count charging third-degree distribution of heroin within 1,000 feet of a school. N.J.S.A. 2C:35-7. On March 9, 2009, he was sentenced to five years of Drug Court special probation. Such probation had several conditions, including:
[T]he successful completion of all drug court program phases, compliance with all court ordered treatment until successful discharge . . . . Payment of all fines and penalties; defendant to enter and successfully complete a Halfway House Program for a minimum of 6 months; and also participate in an aftercare program as OutPatient. . . . [D]efendant to perform 125 hours of Community Service; defendant to obtain and maintain gainful employment as a further condition of Probation.
In his plea form, defendant agreed that under the plea agreement, if he violated his special probation, the "alternate sentence "would be" six years [in prison] with three years parole ineligibility. Defendant acknowledges he is facing an extended term as an alternate sentence." At the plea, defendant's counsel and the court explained that if defendant were resentenced he would receive an extended term of six years in prison with three years of parole ineligibility. Defendant indicated he understood the terms. At his Drug Court sentencing, the court again advised defendant that if he did not complete the program, "you'll be going to State Prison for six years with three years before you're eligible for parole." Defendant agreed he understood.
Defendant violated all of the conditions of his special probation quoted above. On September 23, 2010, he pled guilty to his violations of probation before Judge Rudolph A. Filko. Defendant again acknowledged that he would be sentenced to six years in prison with three years of parole ineligibility.
The sentencing court noted defendant had violated his special probation "in almost every single possible way [he] could." The sentencing court found aggravating factors three, six, and nine, as the court had prior to the imposition of special probation. However, unlike before special probation, the court did not find defendant was "particularly likely to respond affirmatively to probationary treatment," N.J.S.A. 2C:44-1(b)(10). Finding no mitigating factors applied, the court found the aggravating factors substantially outweighed the mitigating factors, and sentenced defendant to six years in prison with three years of parole ineligibility.
Defendant appealed, challenging his sentence and questioning the calculation of jail credits. After hearing argument under Rule 2:9-11, we affirmed the sentence, finding it "is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." We remanded only to calculate jail-time credit. State v. Forbes, No. A-1859-10 (App. Div. April 11, 2011), certif. denied, 208 N.J. 381 (2011).
Defendant filed a PCR petition. Counsel was appointed, and filed a brief. After hearing argument, Judge Filko issued an opinion and order denying relief on July 16, 2012.
II.
Defendant appeals, raising the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings And Petitions For Post Conviction Relief.
B. Trial Counsel Rendered Ineffective Legal Representation By Virtue Of Her Failure To Present All Mitigating Factors At Sentencing On Behalf Of Defendant.
C. Defendant Is Entitled To A Remand To The Trial Court To Afford Him An Evidentiary Hearing To Determine The Merits Of His Contention That He Was Denied the
Effective Assistance Of Trial Counsel.
To show ineffective assistance, defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012). Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80.
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, 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 claim will ultimately succeed on the merits." Ibid.
If the PCR court has not held an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 420- 21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.
III.
Defendant argues that his counsel was ineffective at sentencing by failing to argue that mitigating factors one, two, nine, ten, and twelve applied. See N.J.S.A. 2C:44-1(b)(1), (2), (9), (10), (12). Defendant then argues counsel should have asserted that those mitigating factors outweighed the aggravating factors, which he contends would have resulted in a lower sentence.
The PCR court pointed out that defendant's PCR petition offered no reasons or facts making those mitigating factors applicable to him. The court found that defendant had not shown that trial counsel's conduct fell below professional standards. The court added that, had counsel argued for those mitigating factors, "it is unlikely the Court would have applied any weight to them as they were unsupported by the facts."
We reject defendant's arguments for substantially the reasons set forth in Judge Filko's PCR opinion. It is telling that the PCR judge, who also sentenced defendant, found that he would not have imposed a lower sentence if sentencing counsel had raised the mitigating factors defendant asserts in his PCR. "We believe that the PCR court's finding that the withheld information would not have changed its original determination is entitled to special weight in those circumstances." Marshall, supra, 148 N.J. at 186 (applying this precept in the discovery context); see State v. Allegro, 193 N.J. 352, 367-68 (2008).
IV.
The PCR court found that defendant was not prejudiced. The court relied primarily on its ruling that the sentencing court had been required to sentence defendant to a mandatory term of imprisonment and mandatory minimum term under N.J.S.A. 2C:35-7, and could not impose a sentence less than the plea agreement's agreed-upon alternative sentence under N.J.S.A. 2C:35-12, because defendant had received and violated special probation under N.J.S.A. 2C:35-14. We uphold the ruling both because we agree with the ruling and because defendant previously litigated and lost that issue.
We agree with the PCR court's ruling for the reasons set forth in State v. Bishop, 429 N.J. Super. 533 (App. Div.), certif. granted, 216 N.J. 14 (2013). In Bishop, the defendant argued that a sentencing court, after the permanent revocation of special probation under N.J.S.A. 2C:35-14, is not required to impose the mandatory term of imprisonment and mandatory minimum term required by N.J.S.A. 2C:35-7, or to impose the plea agreement's agreed-upon alternative sentence pursuant to N.J.S.A. 2C:35-12. Bishop, supra, 429 N.J. Super. at 538. The defendant relied on State v. Vasquez, 129 N.J. 189 (1992), and its companion case, State v. Peters, 129 N.J. 210 (1992), which analyzed the regular probation statute, N.J.S.A. 2C:45-3(b). Bishop, supra, 429 N.J. Super. at 538, 543 & n.5. We properly rejected that argument because of the difference in language and purpose of the special probation provision, N.J.S.A. 2C:35-14(f)(4). Bishop, supra, 429 N.J. Super. at 543-51.
In any event, defendant is barred from raising this issue because it was previously adjudicated in his direct appeal. In that appeal, defendant's only challenge to his sentence was that it violated Vasquez for the sentencing court to believe that it had to impose the agreed-upon alternative sentence of six years in prison, with three years of parole disqualification. We necessarily rejected that argument in affirming the sentence. State v. Forbes, No. A-1859-10 (App. Div. April 11, 2011). Defendant's petition for certification incorporated his Vasquez argument. The Supreme Court denied certification. State v. Forbes, 208 N.J. 381 (2011).
Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." Thus, "Rule 3:22-5 bars all grounds for relief that previously were adjudicated on the merits." Marshall, supra, 148 N.J. at 144. A defendant may not raise an issue on PCR "identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (quotation marks omitted). Defendant, having raised the Vasquez argument in his direct appeal, was precluded from raising this argument in this PCR appeal under Rule 3:22-5. State v. McQuaid, 147 N.J. 464, 483 (1997).
Moreover, because he received the exact sentence that he repeatedly agreed that he should receive if he violated his special probation, there is no "miscarriage of justice" here. State v. Nash, 212 N.J. 518, 546 (2013).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION