Opinion
DOCKET NO. A-1417-13T2
10-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WAFI R. LONG, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-08-0745 and 06-10-0939. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of his post-conviction relief (PCR) petition in which he argued ineffective assistance of both trial and appellate counsel. Defendant raises the following arguments on appeal:
POINT IWe have considered these arguments in light of the record and the law, and we affirm; however, we remand to correct clerical errors in the judgments of conviction.
THE PCR COURT ERRED WHEN IT FAILED TO VACATE THE SENTENCE IMPOSED FOR AGGRAVATED MANSLAUGHTER WHICH EXCEEDED THE MAXIMUM SENTENCE ALLOWED BY THE PLEA AGREEMENT ENTERED FOR THAT CHARGE
POINT II
THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF
POINT III
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING
The following brief facts are derived from defendant's statement under oath at the plea hearing that gives rise to this appeal.
On December 24, 2005, defendant shot an individual approximately seven or eight times at close range in an attempt to kill him. In a separate incident, on February 16, 2006, he shot a different individual in the stomach, following a personal dispute. The second victim died from his injuries.
On November 16, 2006, defendant pled guilty to first degree attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1), and first degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a(1), as amended from the charge of murder, N.J.S.A. 2C:11-3, in connection with a plea agreement wherein the State agreed to dismiss the remaining counts of defendant's two indictments and recommend a sentence of nineteen years in prison on the attempted murder charge, and fifteen years in prison on the aggravated manslaughter charge. The sentences on each charge would run concurrent to each other and concurrent to a sentence defendant was then serving for a violation of probation. Additionally, both sentences would be subject to the 85% parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years of parole following his release from custody.
However, at defendant's plea hearing on November 16, 2006, the prosecutor inadvertently recommended a sentence of nineteen years on the aggravated manslaughter charge and fifteen years on the attempted murder charge — effectively switching the terms contained within the plea agreement forms. This error was reflected in defendant's Presentence Report produced by the Union County Probation department on January 23, 2007. No one at the plea hearing acknowledged the error.
At sentencing, the judge imposed a nineteen-year custodial sentence on the aggravated manslaughter charge, with a parole disqualifier of sixteen years and two months, pursuant to NERA's 85% requirement. The judge then imposed a fifteen-year custodial sentence on the attempted murder charge, along with the appropriate parole disqualifier. No objections were raised at the time.
On December 27, 2007, defendant filed a notice of appeal, but never raised the inadvertent switching of the sentences. On July 7, 2010, we affirmed the trial court's denial of defendant's motion to withdraw his guilty plea, along with the denial of a motion to suppress evidence. State v. Long, No. A-2127-07 (App. Div. July 7, 2010), certif. denied, 208 N.J. 372 (2011).
On November 10, 2011, defendant filed a PCR petition, arguing that prior counsel was ineffective because they failed to argue that his sentences for aggravated manslaughter and attempted murder were not in conformity with his plea agreement. On February 1, 2013, the PCR court denied the petition, finding that although a mistake at sentencing was made when defendant's sentences were inadvertently switched, no prejudice was suffered by defendant as a result. This appeal followed.
We affirm the ruling of the Law Division, although we remand for the purpose of amending the judgments of conviction to reflect the agreed-upon sentences for each offense. Moreover, while we find that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), we add the following brief comments.
"Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). In State v. Fritz, 105 N.J. 42, 58 (1987), the New Jersey Supreme Court addressed a criminal defendant's constitutional right to the assistance of "reasonably competent counsel" and adopted the standards for evaluating ineffective assistance of counsel claims established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In judging a claim of ineffectiveness of appellate counsel, the Strickland test also applies. State v. Guzman, 313 N.J. Super. 363, 374 (App. Div. 1998), certif. denied, 156 N.J. 424 (1998).
The Strickland Court created a two-part test for evaluating claims of ineffective assistance of counsel. 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. If both parts of the test are not established, defendant's claim must fail. Ibid. Initially, a defendant must show that counsel's "acts or omissions were outside the wide range of professionally competent assistance" considered in light of all the circumstances of the case. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Id. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Thus, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
The second prong of the test is whether there exists 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 2068, 80 L. Ed. 2d at 698. That is, the challenged error must be so serious as to undermine the court's confidence in defendant's conviction. Ibid. "In determining whether defense counsel's alleged deficient performance prejudiced the defense, 'it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings.'" State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697). Rather, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. 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); See also State v. Drisco, 355 N.J. Super. 283, 289 (App. Div. 2002).
Guided by these principles, we discern no basis on which to predicate an ineffective assistance of counsel claim. The inadvertent errors of defense counsel, the prosecutor and the judge in failing to impose the agreed-upon sentences resulted in no harm to defendant, who received the same aggregate sentence he clearly bargained for. Indeed, if defendant's counsel had raised the sentencing switch at the time of the original sentencing, defendant would have received a sentence no different than that which he did receive.
In accordance with the original plea agreement, defendant was to be sentenced to nineteen years in prison for attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1), and fifteen years in prison for aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a(1). The error in imposing the switched sentences did not increase defendant's aggregate sentence and did not subject him to any punitive consequence.
According to Rule 1:13-1:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of appeal.In State v. Matlack, 49 N.J. 491, 501-02 (1967), the Court held clerical-type errors made by the court at sentencing may be corrected without violating the protection against double jeopardy. There, a jury found the defendant guilty of grand larceny, robbery, and atrocious assault and battery. Id. at 493. The judge entered sentences on the record of one to three years (suspended) for the grand larceny, two to three years (suspended) for the robbery, and ten to fifteen years for the atrocious assault and battery (to be consecutive to a prior sentence). Id. at 493-94. Before argument of the defendant's appeal, however, the trial judge informed the prosecutor and the court that, "[t]he sentence for Robbery has been mistakenly made under the Atrocious Assault and Battery indictment and the sentence should be corrected." Id. at 494. The Matlack Court disagreed with the defendant's argument that the mistake at sentencing could not be corrected, explaining that, "[n]o fundamental right of defendant will be violated if an inadvertent clerical-type error is corrected, and he receives the sentence which the trial judge intended him to receive." Id. at 502. The Matlack Court remanded the matter for a sentencing determination, based upon uncertainty in the record as to what caused the mistaken sentence. Ibid.
Here, the origin of the clerical error is clear. Further, a review of the signed plea agreement forms, and an examination of defendant's plea hearing transcript and sentencing transcript, indicate that the judge intended to impose sentence in conformity with the plea agreement. The judge had no intention of imposing a lower sentence. Indeed, the judge made it very clear that he intentionally imposed the maximum punishment permitted by the plea agreement. In reaching his decision, the judge found no mitigating factors, and three aggravating factors, including the risk defendant would commit another offense, the extent of defendant's prior record, and the need to deter defendant and others from violating the law. The judge explained that his findings would warrant an even greater punishment, but he agreed nonetheless to impose sentence within the boundaries of the plea agreement. Therefore, had counsel raised this issue on appeal, resulting in defendant's resentencing, he still would receive the same nineteen-year aggregate term in prison.
While defendant only seeks modification of his nineteen-year sentence for aggravated manslaughter, he ignores the fifteen-year sentence he mistakenly received for attempted murder. Defendant cannot be permitted to capitalize on an inadvertent, clerical mistake — a mistake which effectively produced the same fair and just sentence initially intended and agreed upon by all parties — and thereby escape the consequences of his voluntary plea.
Affirmed, and we remand for the purpose of amending the judgments of conviction in accordance with this opinion. 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