Opinion
DOCKET NO. A-2057-09T1
05-21-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VONNIE SMITH, a/k/a RICKY HOWARD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Carchman.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-08-1360.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Vonnie Smith entered a plea of guilty in 2002 to possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). He was thereafter sentenced to a term of probation. In April 2004, while on probation, he was arrested and subsequently entered a guilty plea to possession of CDS, N.J.S.A. 2C:35-10a(1). He was found guilty of violating his probation and was re-sentenced to a term of five-years imprisonment on the 2002 charge. The judge sentenced defendant to a concurrent five-year term for the 2004 offense. On appeal, we modified the probation violation sentence to four years.
Among a series of post-judgment motions, in May 2008, defendant filed a petition for post-conviction relief (PCR). Judge DePascale, in the Law Division, denied the PCR. This appeal followed.
We need not recite the facts of the various offenses, as defendant's PCR claims focus on allegations of ineffective assistance of counsel in the negotiation of the plea agreement, as well as challenges to the sentence imposed. Specifically, defendant asserts on this appeal:
POINT I
THE FAILURE OF TRIAL [COUNSEL] TO EXPLAIN TO DEFENDANT THAT HIS PLEA AGREEMENT WITH THE PROSECUTOR, THAT HIS SENTENCE WOULD RUN CONCURRENT TO A PREVIOUS SENTENCE IMPOSED FOR A VIOLATION OF PROBATION, DID NOT MEAN THE TWO SENTENCES WERE COTERMINOUS, CONSTITUTED INCOMPLETE LEGAL ADVICE, THUS DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN TO DEFENDANT THAT EVEN IF THE SENTENCING COURT IMPOSED CONCURRENT SENTENCES HIS SENTENCES WOULD NOT BE COTERMINOUS, RENDERED DEFENDANT'S PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY, WITH AN UNDERSTANDING OF THE CONSEQUENCES, WAIVED HIS RIGHT TO A JURY TRIAL (PARTIALLY RAISED BELOW).
POINT III
THE PROCEDURAL BAR OF [RULE] 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF.
POINT IV
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
The essence of defendant's claim is that he was not informed by either his counsel or the judge as to the import of his sentence, such that he failed to understand that his concurrent sentences were not coterminous.
Judge DePascale, who not only accepted defendant's pleas, but also imposed the sentence, found to the contrary. He stated:
Although [c]ounsel's [b]rief raise[s] numerous issues related to [t]rial [c]ounsel's performance, the [d]efendant in his [p]etition raises only one such issue. In his own words he alleges his lawyer "did not tell me that the sentence would or could turn into more than five years."In addition, the judge considered the other issues raised and determined that they were without merit. He further concluded that defendant did not meet his burden under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). We agree.
A simple reading of the plea transcript puts this claim to rest. It is abundantly clear from the transcript that the State would seek to have the sentence on this [i]ndictment run consecutively with that imposed on the [v]iolation of [p]robation. The [c]ourt directly addressed the [d]efendant it was inclined to sentence him to a concurrent term of five years.
The [d]efendant clearly indicated he understood the sentence on this [i]indictment would be a term of five years[,] and [that is] what he received. This sentence did "not then turn into more than five years."
Neither the [c]ourt [n]or [c]ounsel is obligated to determine with precision a defendant's exact length of incarceration. Indeed, that would be impossible insofar as that is dependent upon many variables, including events which occur subsequent to the sentence, such as the [d]efendant's behavior while incarcerated.
It also includes factors which are subjective and completely within the discretion of the Parole Board, such as the [d]efendant's progress towards rehabilitation, requiring or acquisition of coping skills, progress in therapy and the like.
It appears the [d]efendant is complaining here that his sentences were not coterminous. There is nothing in the [r]ecord nor this [c]ourt's recollection that would have led this [d]efendant to believe that his sentences would be coterminous. Such a sentence would have improperly awarded [d]efendant double credit for the time served prior to the imposition of the latter sentence on Indictment No. 04-08-1360.
The only understanding this [d]efendant could or should have had was that his sentences would run concurrently from the date of imposition of the latter sentence, and they have. Beyond that, his length of incarceration, subject to the maximum length of the sentence imposed, is within the discretion of the Parole Board.
To establish ineffective assistance of counsel, defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) by demonstrating that: (1) counsel's performance was deficient; and (2) the deficient performance actually prejudiced the accused's defense. Supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007).
We have carefully reviewed the record as well as defendant's arguments and we agree with the trial judge that these arguments are without merit. R. 2:11-3(e)(2).
Accordingly, we affirm substantially for the reasons set forth in Judge DePasquale's thorough and thoughtful oral opinion of September 10, 2009.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION