Opinion
DOCKET NO. A-1884-13T2
03-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAKEEM ROBERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-10-0923. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Hakeem Roberson appeals from the denial of his application for post-conviction relief (PCR) without an evidentiary hearing. Defendant argues that he was entitled to a hearing on his claim that his plea counsel was ineffective by not attempting to consolidate his guilty pleas from different counties, and by not explaining to him the distinctions between gap-time credit and jail credit. We agree, and reverse and remand for such a hearing.
In 2007, defendant was charged with twenty-five counts of a forty-five count indictment, which charged eighteen other people. In 2008, defendant entered into a plea agreement with the State, pleading guilty to nine counts of the indictment. Defendant then filed a motion to withdraw his plea, which was subsequently denied on June 3, 2009. The trial court ultimately sentenced defendant to an aggregate term of eighteen years in prison with nine years of parole ineligibility.
Defendant appealed both the trial court's June 2009 denial of his motion to withdraw the guilty plea and his sentence. Because the State conceded as to the sentencing issues, we affirmed the denial of defendant's motion and reversed and remanded for resentencing. See State v. Roberson, No. A-1157-09 (App. Div. Mar. 8, 2012) (slip op. at 11-12, 21), certif. denied, 211 N.J. 608 (2012). Defendant thereafter filed a petition for PCR. On August 16, 2013, the PCR judge denied defendant's application for PCR on the grounds that defendant's claims were barred pursuant to Rule 3:22-4 and Rule 3:22-5. In his written statement of reasons, the PCR judge noted that even if defendant's application was not barred, defense counsel was not ineffective.
Gap-time credits are awarded to reduce the maximum term an inmate may serve, and do not reduce the inmate's minimum mandatory term. See N.J.S.A. 2C:44-5(b)(2); State v. Hernandez, 208 N.J. 24, 38 (2011) (recognizing that "gap-time credits are applied to the 'back end' of a sentence"). Thus, the difference between gap time and jail credit has a tremendous practical significance. Defendant points to the transcript of his re-sentencing, following the judge and the State's explanation of the difference between gap time and jail credit, where he stated, "I see what you're saying but it makes my plea longer, it makes it eleven-year stip instead of a nine-year stip like I pled to. But it's all right, I'll just handle it."
Defendant raises the following issues in this appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA ON THE BASIS THAT HE HAD FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY, AND VOLUNTARILY ENTERED.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS,
EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE GUILTY PLEA INTO WHICH HE ENTERED WAS NOT MADE FREELY, KNOWINGLY AND VOLUNTARILY AS A RESULT OF INACCURATE INFORMATION PROVIDED TO HIM BY TRIAL COUNSEL WITH RESPECT TO THE NATURE AND EXTENT OF JAIL CREDITS TO WHICH HE WOULD BE ENTITLED AT SENTENCING, THE POST CONVICTION RELIEF COURT ERRED IN DENYING HIS PETITION SEEKING TO WITHDRAW HIS GUILTY PLEAS WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.
POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.
POINT III: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.
In his pro se supplemental brief, defendant raises, without a point heading, the issue that his lawyer should have moved to consolidate his charges in one county in accordance with Rule 3:25A-1.
We first review the well-established principles guiding our PCR review. Defendant's petition arises from the application of Rule 3:22-2, which permits collateral attack of a conviction based upon a claim of ineffective assistance of counsel within five years of the conviction. See R. 3:22-2(a); R. 3:22-12(a); see also 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). To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) the deficient performance truly "prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (quoting U.S. Const. amend. VI); Fritz, supra, 105 N.J. at 58 (adopting the Strickland two-part test in New Jersey).
There is a strong presumption that defense 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. We must therefore engage in a "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-19 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997)).
A PCR judge should grant an evidentiary hearing "if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case, defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington." Id. at 463.
"When determining the propriety of conducting an evidentiary hearing, the PCR court should view the facts in the light most favorable to the defendant." State v. Jones, 219 N.J. 298, 311 (2014). "If, with the facts so viewed, the PCR claim has a reasonable probability of being meritorious, then the defendant should ordinarily receive an evidentiary hearing in order to prove his entitlement to relief." Ibid.
In cases brought by a defendant who has entered a guilty plea, the defendant satisfies the first Strickland prong if he or she can show that counsel's representation fell short of the prevailing norms of the legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The defendant proves the second component of Strickland by establishing "a reasonable probability that" the defendant "would not have pled guilty," but for the counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 138-39 (2009)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Defendant claims he would not have pled guilty had he known that he would receive 716 days as gap-time credit and 63 days as jail credit rather than 779 total days of jail credit.
The judge opined that this issue should have been raised on direct appeal. R. 3:22-4(a)(1). Whether defense counsel explained jail credit to defendant, however, is not an issue that could have been raised on direct appeal as it depends on facts not in the record. Preciose, supra, 129 N.J. at 460 ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record."). The facts as to whether defense counsel explained gap-time credits to defendant, and whether counsel considered consolidating his charges from other vicinages, which would have the same practical effect as eliminating gap time, require fact-finding at a plenary hearing. We therefore reverse and remand for such a hearing.
Reversed and remanded. 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