Opinion
DOCKET NO. A-1671-13T2
07-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN GUMBS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-03-0573. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kevin Gumbs appeals from an order entered by the Law Division on April 19, 2013, denying his petition for post-conviction relief ("PCR"). We affirm.
I.
Defendant was charged under Monmouth County Indictment No. 09-03-0573 with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of more than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(11) (count two); third-degree possession of marijuana with intent to distribute while within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count three); and second-degree possession of marijuana with intent to distribute while within 500 feet of a public park or housing facility, N.J.S.A. 2C:35-7.1 (count four).
On May 12, 2009, defendant pled guilty to counts three and four, pursuant to a plea agreement, with the State recommending an aggregate sentence of eight years of incarceration with four years of parole ineligibility.
Defendant had a prior criminal record of possession with intent to distribute that made him eligible for an extended term pursuant to N.J.S.A. 2C:43-6f and N.J.S.A. 2C:44-3a. Accordingly, defendant faced a mandatory extended term of five to ten years on each count of the indictment. N.J.S.A. 2C:43-7a(4). Allowing for merger of the three counts of possession of marijuana with intent to distribute, defendant faced an aggregate sentence of ten to twenty years of incarceration.
We discern the following facts from the plea record. On September 3, 2008, the police observed a vehicle traveling through school and public park zones in Keansburg. The police stopped the vehicle outside of the school and park zones and discovered defendant possessed over one ounce of marijuana. At his plea hearing, defendant admitted that he had intended to distribute the marijuana.
The PCR record indicates that, in addition to 1.43 ounces of marijuana, defendant possessed 1.33 grams of cocaine. Defendant also gave a statement to police in which he detailed the purchase price and resale value of the marijuana, and stated that he was traveling to meet a customer at the time of his arrest.
Defendant subsequently filed a pro se motion to withdraw his plea, and obtained new counsel. Despite reservations, defendant withdrew his motion on the advice of his new counsel. Defendant's acquiescence rested upon his counsel's representation that "passing through is sufficient" to establish possession with intent to distribute within a school or public park zone. Defendant's counsel stated that defendant would pursue a lesser sentence instead of attempting to withdraw his plea.
On September 14, 2010, the trial court sentenced defendant to the negotiated aggregate sentence of eight years of incarceration with four years of parole ineligibility. Defendant appealed, and we heard oral argument on November 16, 2010, on our Excessive Sentencing Oral Argument calendar. R. 2:9-11. Defendant requested we vacate his "illegal" plea due to the "lack of sufficient nexus between the drugs and the conduct" in the school and park zones. In pertinent part, we affirmed defendant's conviction and sentence. State v. Gumbs, No. A-5055-09, E.S.O.A. order, November 17, 2010.
We remanded the matter to the trial court for the limited purpose of recalculation of jail credits. --------
On April 30, 2012, defendant filed this petition for PCR. After oral argument on April 19, 2013, the PCR court denied the petition without an evidentiary hearing. This appeal followed.
On appeal, defendant argues:
POINT ONE
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-5.
POINT TWO
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
II.
To establish a claim of ineffective assistance of counsel, defendant must show that "'counsel's performance was deficient[,]'" and that "'the deficient performance prejudiced the defense'" such that "there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 693-98 (1984)). There is a strong presumption that counsel exercised reasonable judgment, and we give high deference to counsel's strategic decisions. State v. Hess, 207 N.J. 123, 147 (2011).
We discern no deficiency in plea counsel's performance. The case against defendant on counts one and two was very strong, and those counts did not depend upon defendant's presence within a school or park zone. Defendant faced ten to twenty years of incarceration on those two counts. Accordingly, defendant's counsel's recommendation to withdraw defendant's motion and stand behind the plea, with its recommended sentence of eight years of incarceration with four years of parole ineligibility, was a sound strategic decision.
Moreover, defendant would have been unsuccessful in his motion to withdraw his plea. Defendant's motion would have rested, in pertinent part, on his ability to show that he had a colorable claim of innocence. State v. Slater, 198 N.J. 145, 157 (2009). The record does not support such a claim of innocence.
The evidence overwhelmingly demonstrates that defendant, while traveling through school and park zones, possessed marijuana with the intent to distribute. Our case law indicates that N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-7.1 require possession with intent to distribute, and possession within a school or park zone, but not intent to distribute within a school or park zone. See State v. Ivory, 124 N.J. 582, 592 (1991) (concluding that N.J.S.A. 2C:35-7 "does not necessitate that one be shown to intend to distribute within any specific area or time frame"). Our Supreme Court's holding in State v. Lewis, 185 N.J. 363, 373-74 (2005), addressed constructive possession of narcotics located outside of a park zone, and does not apply here, where defendant actually possessed marijuana within school and park zones.
Accordingly, even had defendant pursued his motion, he would have failed to establish a colorable claim of innocence. Defendant's counsel's advice to withdraw the unmeritorious motion was, again, a sound strategic decision.
Finally, we discern no reasonable probability that defendant would have benefited from pursuing the withdrawal of his plea. As discussed, the State had a strong case under counts one and two, and defendant faced ten to twenty years of incarceration on those counts alone. There is no reasonable probability that defendant would have received a sentence of less than ten years, and thus no reasonable probability that the correction of defendant's counsel's alleged error would have produced a favorable result.
As defendant's petition is deficient on its face, defendant failed to establish a prima facie claim of ineffective assistance of counsel, and it was within the PCR court's discretion to decline an evidentiary hearing. See R. 3:22-10(b); State v. Jones, 219 N.J. 298, 311 (2014) (noting that an evidentiary hearing on a PCR petition is only required when the alleged facts, "when viewed in the light most favorable to [defendant], are sufficient to demonstrate a reasonable likelihood of success on [the] PCR claim").
As defendant's petition fails on its merits, we decline to address whether the petition is also barred by Rule 3:22-5. For these reasons, we affirm the April 19, 2013 order denying defendant's petition for PCR.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION