Opinion
DOCKET NO. A-4508-14T1
12-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL I. SMITH, a/k/a MICHAEL ERVING, LARRY SMITH, KEYATT SMITH, MICHAEL IRVING, TRACY JONES, MICHAEL WILLIAMS, LARRY WILL, MICHAEL WILL, and IRVING SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Emily Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fasciale and Gilson. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-05-1339, 09-05-1213, and 09-12-2965. Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Emily Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from an April 17, 2015 order denying his petition for post-conviction relief (PCR). We affirm, but remand for re-sentencing.
Defendant committed multiple thefts at casinos in Atlantic City. In May 2009, defendant was indicted and charged twice for third-degree theft, N.J.S.A. 2C:20-3. Defendant entered into a plea agreement in August 2009, in which the prosecutors agreed to recommend a seven-year sentence for the two theft charges, and a dismissal of four other theft charges that occurred during a six-week period. The plea agreement also permitted defendant to be released on home monitoring bail with an ankle bracelet, but stated that any violation of the terms of the home monitoring would result in a withdrawal of the plea.
In October 2009, prior to sentencing, defendant removed his ankle bracelet and violated the terms of the plea agreement, which resulted in an indictment charging him with third-degree escape, N.J.S.A. 2C:29-5. Defendant entered into a second plea agreement in which the prosecutors agreed to recommend a three-year prison sentence on defendant's escape charge, concurrent with any sentence on defendant's two theft convictions.
In February 2010, the sentencing judge imposed a five-year prison sentence with a two-year period of parole ineligibility for each theft conviction, to be run consecutively, for an aggregate sentence of ten years in prison with a four-year period of parole ineligibility. The sentencing judge also imposed a three-year prison sentence for the escape conviction, concurrent to the two theft sentences. The judge awarded defendant 140 days of jail credit.
Defendant appealed his sentence arguing it was excessive. In May 2011, an Excessive Sentence Oral Argument (ESOA) panel heard the appeal and rejected defendant's arguments. See R. 2:9-11. The panel remanded, however, instructing the judge to provide an explanation for imposing consecutive sentences.
In June 2011, a re-sentencing hearing was held and the re-sentencing judge imposed a ten-year sentence with a five-year period of parole ineligibility for one of the theft convictions, and imposed a concurrent five-year sentence for the other theft conviction. The re-sentencing judge also denied defendant's request for more than 140 days of jail credits.
In October 2011, defendant filed a pro se motion requesting additional jail credits, which was denied. Defendant filed a second appeal arguing that his re-sentence was improper, given the limited scope of the remand, and that he was entitled to additional jail credits. In July 2012, after oral argument, a second ESOA panel issued an order affirming the re-sentence "in all respects."
In August 2014, defendant filed a pro se petition for PCR. A non-evidentiary hearing was held on April 17, 2015, where defendant withdrew all the issues previously briefed except for his assertion that he was entitled to additional jail credits. The PCR judge issued an oral opinion and denied defendant's petition for PCR, holding that Rule 3:22-5 procedurally barred defendant from arguing for more jail credits, and if there was no procedural bar, State v. Hernandez, 208 N.J. 24 (2011), was inapplicable.
On appeal, defendant argues:
[I.] THE IMPOSITION OF A HARSHER SENTENCE AFTER THE APPELLATE COURT'S LIMITED REMAND CREATED AN ILLEGAL SENTENCE AS IT VIOLATED CONSTITUTIONAL PRINCIPLES OF DOUBLE JEOPARDY, DUE PROCESS AND FUNDAMENTAL FAIRNESS[.]
A. DEFENDANT IS NOT PROCEDURALLY BARRED FROM APPEALING HIS SENTENCE AS IT IS AN ILLEGAL SENTENCE[.]
B. THE IMPOSITION OF A HARSHER SENTENCE UPON REMAND VIOLATED DUE PROCESS AND FUNDAMENTAL FAIRNESS AS GUARANTEED UNDER THE FEDERAL AND NEW JERSEY STATE CONSTITUTIONS[.]
C. PRESUMPTION OF VINDICTIVENESS[.]
D. [THE SENTENCING JUDGE'S] IMPOSITION OF A HARSHER SENTENCE WAS VINDICTIVE WITH OR WITHOUT A PRESUMPTION OF VINDICTIVENESS[.]
E. RESENTENCING OF DEFENDANT TO A HARSHER SENTENCE VIOLATES CONSTITUTIONAL PRINCIPLES OF DOUBLE JEOPARDY[.]
[II.] IN RESENTENCING DEFENDANT THE TRIAL COURT ILLEGALLY EXCEEDED THE SCOPE OF THE LIMITED REMAND ORDERED BY THE [ESOA] PANEL
[III.] DEFENDANT IS ENTITLED TO ADDITIONAL JAIL TIME CREDITS[.]
A. DEFENDANT IS NOT PROCEDURALLY BARRED FROM APPEALING THE DENIAL OF JAIL CREDITS[.]
B. DEFENDANT'S CLAIM TO JAIL CREDITS IS VALID UNDER A PRE-HERNANDEZ INTERPRETATION OF RULE 3:21-8[.]
C. THE HERNANDEZ RULE APPLIES TO THE SENTENCE IMPOSED IN THIS CASE[.]
D. DEFENDANT IS ENTITLED TO THE CLAIMED JAIL CREDITS BASED ON CONSIDERATIONS OF FAIRNESS, JUSTICE AND FAIR DEALINGS[.]
[IV.] DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN BOTH THE PRIOR PROCEEDINGS BEFORE THE [ESOA] PANEL[.]
We begin by addressing defendant's contention that his re-sentence was illegal because it violates the constitutional principles of double jeopardy. Defendant asserts the re-sentence violated principles of double jeopardy because his re-sentence was harsher than his original sentence. The State concedes this argument and does not object to a remand for re-sentencing.
We note briefly that it is undisputed that the re-sentencing judge increased defendant's sentence to a ten-year sentence with a five-year period of parole ineligibility on theft conviction, and a concurrent five-year sentence for the other theft conviction. The increase in the period of parole ineligibility from defendant's original sentence violated defendant's constitutional right against double jeopardy. Therefore, we remand for re-sentencing.
We conclude defendant's remaining arguments as to the jail credits are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.
We previously adjudicated defendant's contentions as to the jail credits. As a result, such arguments are procedurally barred by Rule 3:22-5. Defendant argued before the second ESOA panel that his re-sentence exceeded the scope of the limited remand and he was entitled to additional jail credits. The second ESOA panel affirmed the re-sentence "in all respects" and explained that the sentence did not constitute an abuse of discretion. Defendant did not thereafter file a petition for certification seeking review of our order by the Supreme Court.
Defendant's argument that appellate counsel provided ineffective assistance is also without merit. For a defendant to obtain relief based on ineffective assistance grounds, he must show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. 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). Defendant has failed to satisfy this standard.
We reject defendant's contention that he received ineffective assistance of counsel when appellate counsel failed to raise the issue of jail credits at the initial ESOA panel. Defendant concedes that based upon the record, "it is impossible to determine which of the six separate indictments defendant's jailing was attributable to." Therefore, there is no credible evidence in this record demonstrating that appellate counsel was deficient in failing to argue jail credits before the first ESOA panel. At any rate, we resolved that issue on the second ESOA appeal.
Defendant also fails to show that appellate counsel was ineffective for failing to move for reconsideration of the initial ESOA panel decision in the light of Hernandez. Hernandez, supra, 208 N.J. 24. Hernandez was decided after defendant's first ESOA panel hearing. Ibid. In Hernandez, the Court held that jail credits earned before "the imposition of the first custodial sentence, are to be awarded with respect to multiple charges." Id. at 50. The Court stated that the holding was to be applied "only prospectively to sentences imposed as of [June 9, 2011], except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51. Because defendant's case was not on direct appeal at the time, and the issue of jail credits was already decided, Hernandez is inapplicable. Appellate counsel's actions did not "'[fall] outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).
Defendant failed to show that his appellate counsel was ineffective for not addressing Hernandez in the second ESOA panel hearing. Although appellate counsel did not mention Hernandez, counsel argued before the second ESOA panel that the jail credit amount was incorrect. Additionally, Hernandez did not relate to defendant's case because it did not apply retroactively. Therefore, defendant failed to prove that appellate counsel was ineffective. Furthermore, defendant did not thereafter file a petition for certification seeking review of our order by the Supreme Court.
We affirm the order denying defendant's PCR petition, but remand for re-sentencing on the double jeopardy issue. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION