Opinion
DOCKET NO. A-3895-11T1
09-06-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEWIS JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Julia L. McClure, First Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-01-06.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Julia L. McClure, First Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a December 12, 2011 order denying his petition for post-conviction relief (PCR). Defendant contends that his plea counsel provided ineffective assistance of counsel by failing to advise him about a three-year period of parole supervision and the consequences of Megan's Law. We affirm.
N.J.S.A. 2C:7-1 to -23.
In January 2003, defendant pled guilty to two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; third-degree terroristic threats, N.J.S.A. 2C:12-3a; and second-degree burglary, N.J.S.A. 2C:18-2. In July 2003, the judge followed the plea agreement and imposed an aggregate prison term of seventeen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and Megan's Law, including community supervision for life (CSL).
The judge sentenced defendant to consecutive five-year prison terms on the sex offenses subject to Megan's Law; consecutive to a seven-year prison term on the burglary conviction, subject to NERA; concurrent to two five-year prison terms on the weapons and terroristic threats offenses. The three-year period of parole supervision applied to the second-degree burglary conviction.
We reviewed the sentence twice on our excessive sentence calendar. In September 2005, we remanded for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005). In October 2005, the judge imposed the same sentence. In June 2006, we affirmed the sentence and remanded for the entry of an amended judgment of conviction (JOC) to correct a jail credit calculation.
In February 2011, defendant filed his petition for PCR. Defendant stated in his PCR petition that the sex-related offenses "will never ever happen again," his sentence was too "stiff," and he made bad decisions because he stopped taking medication, used illegal drugs, and learned that his mother was ill. Defendant's appointed PCR counsel then elaborated by contending that defendant was unaware of the three-year period of parole supervision and CSL.
Defendant also testified at the January 2003 plea hearing that "I'm ashamed [of] what I did. I have a lot of remorse. If I had to do it all over again[,] it would never happen. I'm just very sorry and I pray for the victims every night."
In December 2011, the PCR judge conducted oral argument, issued an oral opinion, and denied the petition for procedural and substantive reasons. During oral argument, the judge learned that defendant was also treating his petition as a motion to withdraw his guilty pleas. As a result, the judge applied the factors the Court enunciated in State v. Slater, 198 N.J. 145, 157-58 (2009), and denied defendant's informal request to withdraw his pleas. This appeal followed.
We note that a PCR petition is not the vehicle to seek to withdraw a guilty plea. See R. 3:22-2. Notwithstanding this error, we note that defendant has not asserted a colorable claim of innocence.
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On appeal, defendant raises the following points:
POINT I
THE PCR COURT ERRED IN FINDING THAT [DEFENDANT'S] MOTION FOR [PCR] WAS PROCEDURALLY BARRED.
POINT II
THE PCR COURT ERRED IN DENYING DEFENDANT'S MOTION FOR PCR BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF PLEA COUNSEL DUE TO COUNSEL'S FAILURE TO INFORM DEFENDANT OF THE PAROLE "TAIL" REQUIREMENTS OF THE NO EARLY RELEASE ACT AND THE COMMMUNITY SUPERVISION FOR LIFE CONDITIONS OF MEGAN'S LAW.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed, . . . [counsel must] ensure that the trial is fair." Id. at 685, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692. Therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Ibid. (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, ¶ 10; State v. Fritz, 105 N.J. 42, 58 (1987).
To establish a claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the Strickland two-prong test. First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. New Jersey has adopted the precepts of Strickland. Fritz, supra, 105 N.J. at 58.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt," United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. _, _, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d. 398, 406-07 (2012); Missouri v. Frye, 566 U.S. _, _, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d. 379, 390 (2012). A defendant must demonstrate with "'reasonable probability'" that the result would have been different had he received proper advice from his plea attorney. Lafler, supra, 566 U.S. at _, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Further, to protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. As our Supreme Court has stated:
Because post-conviction relief is not a substitute for direct appeal and because of the public policy "to promote finality in judicial proceedings," State v. McQuaid, 147 N.J. 464, 483 (1997), our rules provide various procedural bars. For example, a petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4; the issue was previously decided on direct appeal, Rule 3:22-5; or the petition was filed more than five years after the judgment or sentence that was imposed, Rule 3:22-12. Although our rules provide for certain exceptions to these general rules, we have emphasized that it is important to adhere to our procedural bars. [State v. Echols, 199 N.J. 344, 357 (2009) (citation omitted).]
We agree with the PCR judge that defendant's petition is barred by Rules 3:22-12(a)(1) and 3:22-4. Defendant was convicted in July 2003 and filed his petition in February 2011. The five-year period is not stayed or tolled by appellate proceedings. State v. Dillard, 208 N.J. Super. 722, 726-27 (App. Div.), certif. denied, 105 N.J. 527 (1986). The date of the judgment of conviction controls even if there are subsequent sentencing proceedings. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996). Moreover, defendant could have raised his contention that he was unaware of both the three-year parole supervision period and CSL. Furthermore, there is no credible evidence that the late filing was due to defendant's excusable neglect or that enforcement of the time bar would result in a fundamental injustice. Nevertheless, we will consider the PCR petition on the merits.
Defendant has failed to establish that plea counsel performed deficiently. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The plea forms referenced the three-year period of parole supervision and CSL. Defendant testified at his plea hearing that he reviewed and understood the plea forms before signing them, his plea counsel reviewed the forms with him in detail and answered all his questions, he understood he was subject to Megan's Law, including CSL, and that defendant was "very satisfied" with his plea counsel. "For a plea to be knowing, intelligent[,] and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005). The record demonstrates that defendant "underst[ood] the nature of the charge and the consequences of the plea." Ibid. Therefore, defendant has failed to establish Strickland's first prong.
Additionally, even if defendant had satisfied prong one of Strickland, we conclude that defendant has failed to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 698. Defendant faced a sixteen-count indictment regarding offenses that occurred against three victims on separate dates, which included separate charges of second-degree burglary, and a one-count accusation for second-degree burglary. Plea counsel negotiated a favorable plea for defendant and there is no credible evidence that defendant would have received a different result. As such, defendant has failed to meet Strickland's second prong.
After carefully considering the record and briefs, we conclude that defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION