Opinion
DOCKET NO. A-4601-13T2
11-17-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN RILEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew J. Shaw, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 97-04-0436, 97-12-1381, 98-03-0284, and Accusation No. 99-02-0064. Joseph E. Krakora, Public Defender, attorney for appellant (Andrew J. Shaw, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Shawn Riley, appeals from an October 17, 2013 order denying his petition for post-conviction relief (PCR). Defendant maintains that he received ineffective assistance from plea counsel. We affirm.
On April 8, 1997, defendant was charged under Indictment No. 97-04-0436 with multiple drug-related offenses. He pled guilty to one count under the indictment in exchange for a recommended probation term conditioned upon a 364-day maximum incarceration period. He was sentenced to a three-year probationary term.
On September 22, 1998, and February 19, 1999, defendant entered plea agreements on new drug charges under Indictment Nos. 97-12-1381, 98-03-0284, and Accusation No. 99-02-0064. In exchange for guilty pleas for one count each under Indictment Nos. 97-12-1381 and 98-03-0284, the State agreed to recommend a five-year term of incarceration with a mandatory three-year period of parole ineligibility, concurrent to each other, subject to any probation violation, and to waive the right to seek an extended term. In exchange for a guilty plea for one count under Accusation No. 99-02-0064, the State recommended a twelve-year extended term with a mandatory four-year term and three months during which he would be ineligible for parole, concurrent to the other recommended sentences.
Defendant was sentenced pursuant to the plea agreements and sentenced to a concurrent four-year incarceration period for the probation violation under Indictment No. 97-04-0436. We then affirmed defendant's sentence on our excessive sentencing oral argument calendar, except as to the motor vehicle suspensions imposed.
Subsequently, defendant was indicted on federal drug and firearm charges. He pled guilty and was sentenced on April 16, 2008, to 172 months of incarceration. He then filed a PCR petition on November 22, 2011, which Judge Thomas M. Brown, J.S.C., denied on October 17, 2013, in a written opinion. He argued his counsel's ineffective assistance rendered his guilty plea defective because he never knowingly waived his right to a jury trial.
Defendant raises the following points on appeal:
POINT I
THE PETITION SHOULD HAVE BEEN GRANTED BECAUSE THE FAILURE OF TRIAL COUNSEL TO INFORM THE APPELLANT OF IMPORTANT NEGATIVE CONSEQUENCES OF HIS PLEA CAUSED THE APPELLANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE AS HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.
POINT II
THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL FAILED TO PROVIDE THE APPELLANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL, WHICH PREJUDICED HIM.
A. Trial Counsel Was Ineffective By Failing To Inform The Appellant Of Important Negative Consequences Of The Plea.
B. The Matter Should Be Remanded For An Evidentiary Hearing On The Appellant's Claims.
POINT III
THE PETITION SHOULD NOT HAVE BEEN TIME[-]BARRED BECAUSE THE APPELLANT'S FAILURE TO FILE THE PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT AND THERE IS A REASONABLE PROBABILITY THAT IF THE APPELLANT'S FACTUAL ASSERTIONS ARE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME[-]BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE.
Defendant argues on appeal that his trial counsel was ineffective for failing to tell him the collateral consequences of his guilty plea which included:(1) the inability to obtain a firearm permit and Commercial Driver License; (2) the inability to operate Board of Education and New Jersey Transit vehicles; (3) the inability to vote while on parole or probation; and (4) a court's ability to use his prior conviction against him to enhance a future criminal penalty. He also asserted his claim was not time-barred and requested this matter be remanded for an evidentiary hearing.
New Jersey's PCR is analogous to the federal writ of habeas corpus. State v. Jones, 219 N.J. 298, 310 (2014). To obtain PCR, a defendant "must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
Both the United States Constitution and New Jersey Constitution guarantee the right to assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The right to counsel includes the right of effective counsel. State v. Cottle, 194 N.J. 449, 466 (2008). To establish a prima facie claim of ineffective assistance of counsel, the defendant must satisfy the two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) as adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing that trial counsel's performance was deficient and, but for the deficient performance, the result would have been different. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (1984). In an ineffective assistance of counsel claim arising from a guilty plea, defendant may prove Strickland's second prong by showing a reasonable probability he would have pleaded not guilty and insisted on going to trial but for counsel's error, State v. O'Donnell, 435 N.J. Super. 351, 369-70 (App. Div. 2014), and a decision to reject the plea would have been rational under the circumstances. Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
The mere raising of a PCR claim does not entitle the defendant to an evidentiary hearing, and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. An evidentiary hearing need not be granted if defendant's claims are "too vague to be cognizable." State v. Odom, 113 N.J. Super. 186, 192 (App. Div. 1971); see R. 3:22-10(e)(2).
A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Jones, supra, 219 N.J. at 311-12 (quoting State v. Porter, 216 N.J. 343, 355 (2013)). There is a strong presumption counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
A guilty plea can be accepted in a plea bargain when the court is assured the defendant enters it knowingly, intelligently, and voluntarily. State v. Johnson, 182 N.J. 232, 236 (2005). A plea is knowing, intelligent, and voluntary if the defendant understands the nature of the charges and the plea's consequences. Ibid. A court is not responsible for informing the defendant of the guilty plea's collateral consequences, such as loss of employment, loss of voting rights, and possible license suspension, State v. Heitzman, 107 N.J. 603, 604 (1987), rather it must ensure the defendant is aware of the direct and penal implications, State v. Howard, 110 N.J. 113, 122 (1988). Also, there is no constitutional requirement that a defense attorney must advise a defendant that if he commits a future crime "there may be adverse consequences by way of enhancement of the penalty." State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div.), certif. denied, 162 N.J. 128 (1999).
Judge Brown appropriately applied the law to the facts and found defendant failed to establish a prima facie claim of ineffective assistance of counsel, and therefore, defendant was not entitled to an evidentiary hearing. He noted trial counsel's supposed failure to inform defendant of all future potential collateral consequences did not constitute ineffective assistance of counsel. Specifically, Judge Brown correctly found Wilkerson was directly analogous to defendant's claim, stating there was no constitutional requirement that counsel inform defendant future crimes could result in collateral adverse consequences. Defendant has also failed to make a prima facie showing of ineffective assistance of counsel as to the other collateral consequences he raised on appeal. We need not address whether defendant's PCR petition is time-barred because the judge appropriately denied the petition on its merits.
We considered defendant's contentions in light of the record and applicable legal principles. We affirm substantially for the reasons expressed by Judge Brown in his well-reasoned opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION