Opinion
DOCKET NO. A-4237-11T2
07-14-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT PITTS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, 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NOT FOR PUBLICATION WITHOUT THE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 Grall and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-03-0402.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, 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 Robert Pitts appeals the order that denied his petition for post-conviction relief (PCR). He presents the following arguments:
POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE, SUBJECT TO THE RULES OF COMPETENCY AND RELEVANCE, PRECLUDING DEFENDANT FROM PRESENTING AN ISSUE RAISED IN HIS PETITION, IN THE ABSENCE OF A CERTIFICATION BY PCR COUNSEL WAIVING ARGUMENT ON THE ISSUE, VIOLATED THE DEFENDANT'S RIGHT TO POST-CONVICTION RELIEF.
POINT II THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A RESENTENCING HEARING GIVING DEFENDANT CREDIT FOR GAP TIME BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE GAP TIME CONSEQUENCES OF HIS PLEA WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION, INCLUDING INTERVIEWING THE VICTIM'S FATHER AND OBTAINING THE SURVEILLANCE TAPES, AND HIS FAILURE TO PRESENT A MITIGATING FACTOR ANALYSIS AT SENTENCING WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A) DEFENDANT'S PLEA WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY GIVEN.
(B) THE EFFECT OF THE CUMULATIVE ERRORS RESULTED IN INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND AN UNJUST SENTENCE.
Having considered defendant's arguments in light of the record and controlling law, we affirm.
A Passaic County grand jury charged defendant in the sole count of an indictment with second-degree robbery, N.J.S.A. 2C:15-1(a)(1). Defendant pled guilty to the charge, admitting that during an altercation with a man named Abdul Hussain, he inflicted bodily injury on Mr. Hussain and attempted to take money from him. Following defendant's plea, the court sentenced him to a five-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed appropriate assessments. The court ordered the sentence to run concurrent with a sentence defendant was serving on a separate indictment. According to the judgment of conviction, defendant was also given 129 days of jail credit in accordance with Rule 3:21-8, and 351 days of gap-time credit in accordance with N.J.S.A. 2C:44-5(b)(2).
Defendant appealed his sentence. The appeal was placed on an excessive sentence calendar pursuant to Rule 2:9-11, and we affirmed. The Supreme Court denied certification. State v. Pitts, 207 N.J. 228 (2011).
Following defendant's filing of the appeal, but before oral argument, we temporarily remanded the matter to the trial court to reconstruct the sentencing proceeding, the original recording having been lost or destroyed.
The Court denied certification based on a "Statement of Proceedings in Lieu of Transcript Pursuant to Rule 2:5-3(f)," because on the day the case was argued on our excessive sentence calendar, the sound recording system in the courtroom malfunctioned.
Before defendant submitted his petition for certification, he filed a PCR petition. It was not heard until after the Supreme Court denied certification. In support of his PCR petition, he certified that his "attorney pressured [him] into pleading guilty and failed to properly investigate [his] case." Defendant further alleged that his attorney was having personal problems that prevented him from focusing on the case, did not provide him with a copy of discovery, did not explain the charges, and did not explain defendant's sentencing exposure. As to his sentencing exposure, defendant alleged his attorney failed to explain gap-time credits and how they would affect his parole ineligibility.
In a letter brief filed after the court appointed counsel for defendant, defendant raised these arguments:
PETITIONER IS ENTITLED TO POST-CONVICTION RELIEF BECAUSE HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. PETITIONER'S PLEA WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY GIVEN.
[B]. CUMULATIVE ERROR.
[C]. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO
RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO PETITIONER'S CASE.
We have re-lettered the point headings because there was no Point "B" in defendant's brief.
--------
Following a hearing, the court issued a written decision dated November 28, 2011, denying defendant's petition. Defendant appealed from the memorializing order.
On appeal, defendant claims that the judgment of conviction should be overturned, or his sentence reduced, because his attorney did not represent him effectively. When a defendant seeks to have a court overturn a judgment of conviction because defense counsel performed ineffectively, the defendant must establish both that counsel's performance was deficient and that counsel's deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The defective performance is prejudicial if "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 2068, 80 L. Ed. 2d at 698.
If the judgment of conviction is based on a guilty plea, the defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases,'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); and under the second prong of Strickland "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). We agree with the judge who denied defendant's petition that defendant failed to prove both prongs of Strickland.
The judge granted defendant an evidentiary hearing on most of his claims, but denied defendant's request for a hearing on his claim that counsel's personal problems affected his performance. Defendant argues in Point I that the judge erred by denying defendant's request for a hearing as to counsel's personal problems. We disagree.
In denying defendant a hearing on that point, the judge explained that if defense counsel "did things that he shouldn't have done, [that is,] that he was ineffective, I want to know what they are. If they're wrongs, then we'll talk about them. But if they're wrongs, they're wrongs, period. It doesn't matter why they were wrongs." The judge was correct.
As we have previously explained, when a defendant attempts to set aside a guilty plea based on his counsel's ineffective performance, the defendant must prove under the first prong of Strickland that "counsel's assistance was not within the range of competence demanded of attorneys in criminal cases." DiFrisco, supra, 137 N.J. at 457 (citation and internal quotation marks omitted). If counsel's competence falls below that demanded of attorneys in criminal cases, the reason for the incompetence is irrelevant. If the reason for an attorney's incompetence is either good or understandable, as distinguished from bad or inexplicable, defendant has nonetheless been deprived of his Sixth Amendment right to effective assistance of counsel. The issue is whether counsel was ineffective, not why. For that reason, the judge properly denied defendant's request for a hearing on this point. A defendant is not entitled to a hearing if a hearing is unnecessary to resolve the claims for relief. R. 3:22-10(b).
Defendant argues in Point II that because his counsel did not explain the gap-time consequences of his plea, his case should be remanded for a resentencing hearing, at which time the gap-time credits should be applied, presumably against his NERA period of parole ineligibility. He argues, implicitly, that applying gap-time credits to reduce his period of parole ineligibility is an appropriate remedy for his counsel's failure to explain the gap-time consequences of his plea. That argument is wrong.
A defendant is entitled to gap-time credits if he or she "has been sentenced previously to a term of imprisonment," is "sentenced subsequently to another term," and "both offenses occurred prior to the imposition of the first sentence." State v. Hernandez, 208 N.J. 24, 38 (2011) (citations and internal quotation marks omitted). In those circumstances, the gap-time "credits apply towards the defendant's aggregate sentence, which is calculated as the length of the defendant's longest term when he or she is ordered to serve multiple sentences concurrently and is equal to the sum of all terms when he or she is ordered to serve multiple sentences consecutively." Ibid. (citation and internal quotation marks omitted). Gap-time credits are applied to the "back end" of a sentence, but do not apply to periods of parole disqualification, such as those required by NERA. Id. at 38-39.
Thus, assuming counsel had been ineffective for failing to explain the gap-time consequences of defendant's plea, and further assuming that because of the omission defendant would not have pled guilty, the remedy is not to apply gap-time credits against a mandatory NERA period of parole ineligibility. Rather, "[w]hen a defendant meets both prongs of Strickland, a conviction must be reversed because the ineffective representation constitutes 'a breakdown in the adversary process that renders the result unreliable.'" State v. Nash, 212 N.J. 518, 542 (2013) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Here, however, defendant has not proved by a preponderance of the evidence the second Strickland prong.
Defendant decided to plead guilty while the parties were selecting a jury for his trial. He had rejected several of the State's previous plea offers. During mid-morning of the day the parties began to select a jury, defendant said he "want[ed] to plead guilty to the indictment on its face." When defendant made that decision, he was aware that he was facing an extended term maximum sentence of twenty years subject to the NERA eighty-five percent parole disqualifier.
Although the State had withdrawn all plea offers before jury selection commenced, defendant entered into the non-negotiated plea because the trial judge agreed, based on his knowledge of relevant information concerning defendant's background, that he would sentence defendant to "[f]ive years with [eighty-five] percent to be served before parole eligibility term, concurrent to . . . his present sentence[.]"
The parties interrupted jury selection so that the court could determine if defendant was knowingly and voluntarily pleading guilty. During the plea colloquy, the court explained to defendant that he would have to serve eighty-five percent of his sentence before becoming eligible for parole:
THE COURT: Okay. Also, this non-negotiated plea agreement is — is — will require you, because this is a second-degree offense you're pleading guilty to, to serve 85 percent of your term before you are eligible for parole. Which means you must serve four years, three months and one day before you'll be eligible for parole on this matter. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. Now, also, because this is a No Early Release Act case, you will also have to serve three years - - now, let me make sure its correct - - three years of parole supervision upon your release from custody. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now, if you should violate a term and condition of your parole supervision, you could be required to serve the balance of the three year term out in custody. Do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: So, for example, if you are released at the end of the four years, three months and one day and you violate your
parole supervision early on, say in the first several months, you could be required to spend the balance out in custody, and you could do more time than the five-year sentence that will be imposed in this matter. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. Now, do you - - you do understand that plea agreement then; is that correct?
THE DEFENDANT: YES.
THE COURT: All right. Have any - - any other promises been made to you?
THE DEFENDANT: No.
In addition to acknowledging that he would have to serve eighty-five percent of his sentence before being eligible for parole, defendant signed both a plea form and a supplemental plea form for NERA cases. Defendant also acknowledged that he had reviewed each question on each form with his attorney, had read each question, and understood "[a]ll of them."
No discussion concerning either jail credits or gap-time credits occurred during the plea colloquy. According to the court's reconstruction of defendant's sentencing hearing, after imposing sentence the court "gave [defendant] 129 days jail time credit . . . and . . . [gap-time] credit of 351 days[.]"
When defendant testified at the PCR hearing, he acknowledged that the sentence of five years subject to NERA "is a good sentence," but thought it could have been reduced by a year if the gap-time credits were actually applied to the "front or the back." Defendant acknowledged that he didn't learn about the impact of the gap-time credits until after he began serving his sentence, when he became aware of the computation of the amount of actual time he would have to spend incarcerated.
Defendant's former attorney acknowledged at the PCR hearing that he did not discuss gap-time credits with defendant at the plea hearing. He did, however, tell defendant
many times that you will get whatever credit you're entitled to. . . . [T]hat might have been with regard to gap, it was never mentioned as gap. But he . . . did inquire about it. And I said you'[ll] get whatever time you're entitled to. If you're entitled to the gap time credit, you'll get it.Counsel also told defendant that each day defendant delayed, he would be losing the benefit of the concurrent sentence, "[b]ecause you don't get a concurrent sentence until after you're sentenced."
Defendant contends the PCR judge erred in finding that counsel was not ineffective because he did not affirmatively mislead defendant. Assuming counsel's "omission" to discuss the consequences of gap-time credits when defendant entered his plea satisfied the first prong of Strickland, defendant still was required to prove that but for counsel's omission, he would not have pled guilty and would have proceeded to trial. That he did not do.
First, the proposition that defendant would forego a minimum sentence and risk an extended maximum term of twenty years with eighty-five percent parole ineligibility is somewhat implausible. More significant, however, is that nothing in the record supports the proposition that when he entered the plea, defendant thought gap-time credits would reduce his NERA period of parole ineligibility. There is no mention during the plea hearing of gap-time credits. To the contrary, the court told defendant explicitly that he would have to serve four years, three months, and one day before becoming eligible for parole. Defendant acknowledged that he understood; and defendant further acknowledged that he had read and understood each and every question on the supplemental plea form for NERA cases.
Defendant has stated nowhere that when he decided to enter his plea during jury selection he knew what gap-time credits were, knew how they were computed, and expected that they would reduce his NERA period of parole ineligibility. Absent evidence addressing those considerations, defendant could not and did not sustain his burden of proving that he would not have pled guilty had he known gap-time credits would not reduce his NERA parole disqualifier. We therefore reject defendant's argument that he should be resentenced and should receive a reduced period of parole ineligibility.
We also reject defendant's arguments in Points III and IV, substantially for the reasons explained by the judge who presided over defendant's PCR hearing. Defendant's arguments do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We note only that defendant has not supported with certifications from relevant witnesses his claims that counsel inadequately investigated his case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION