Opinion
DOCKET NO. A-4897-12T2
01-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMAL A. WATTS, a/k/a SHORTY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief; Martha Nye, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-02-0223. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief; Martha Nye, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Jamal A. Watts appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.
Defendant was indicted for third-degree possession of heroin, N.J.S.A. 2C:35-10a(1), third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(3), third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, and second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1. Pursuant to a negotiated agreement, defendant pled guilty to possession of heroin with intent to distribute within 1000 feet of school property in exchange for the State's recommendation of six years' imprisonment with thirty-six months of parole ineligibility.
At the plea hearing, defendant told the judge that he understood that he faced a mandatory extended term because of his criminal history and thus faced a maximum term of ten years with a period of parole ineligibility instead of the five years he would have otherwise faced for his third-degree crime. He further expressed his understanding that in exchange for his plea, the State would recommend that he be sentenced to six years in State Prison with a thirty-six month period of parole ineligibility "pursuant to Brimage," and would request dismissal of the remaining charges. The judge accepted defendant's plea and subsequently sentenced him in accordance with the plea agreement to a term of six years in prison with a thirty-six month period of parole ineligibility.
State v. Brimage, 153 N.J. 1 (1998).
Defendant did not file a direct appeal. In his PCR petition, defendant claimed he received ineffective assistance of counsel in connection with his plea and his receipt of a six-year sentence for a third-degree offense. Appointed counsel filed a brief in support arguing that trial counsel did not conduct an adequate investigation and that defendant was not informed of the consequences of his guilty plea. As to the plea, counsel argued that defendant understood that if he pled guilty, he would receive a term of under five years and that neither the court nor counsel explained the effect of a "Brimage plea." Counsel argued that because defendant was misled as to the consequences of his plea, and trial counsel did not zealously represent him at sentencing, defendant should be allowed to withdraw his guilty plea.
After hearing argument by assigned counsel, Judge Mullaney issued a comprehensive written opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). The judge rejected defendant's claim that his counsel had performed an inadequate investigation because defendant failed to submit affidavits as to what an effective investigation would have revealed or in any way elaborate on the claim. Judge Mullaney further found the record conclusive that defendant was informed of the consequences of his plea and that counsel was not ineffective at sentencing, as argument for a lesser sentence would not have altered the judge's findings or resulted in the imposition of a lesser sentence. Analyzing defendant's request to withdraw his plea, the judge found that not one of the Slater factors would support that relief. Concluding that none of the alleged errors of counsel, either singularly or together, would have altered the outcome, the judge denied the petition.
State v. Slater, 198 N.J. 145 (2009).
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On appeal, defendant contends that he was entitled to an evidentiary hearing on his claim of ineffective assistance of plea counsel for failing to advise him that the sentencing judge was obligated to impose the exact sentence of the plea agreement and that a remand is necessary as his PCR counsel failed to represent him in accordance with State v. Rue, 175 N.J. 1, 19 (2002) (holding Rule 3:22-6 requires counsel to advance a petitioner's claims, making the best arguments available and not denigrate or dismiss any claim or provide aid or support to the State's opposition).
We reject these arguments. Contrary to defendant's assertion on appeal, the judge was not required by N.J.S.A. 2C:35-12 to sentence defendant to the term recommended by the State as reflected in the plea bargain. "[S]ection 12 applies only where the prison sentence or period of parole ineligibility recommended by the prosecution, either before or after trial, is less than the sentence mandated by the [Comprehensive Drug Reform] [A]ct." State v. Thomas, 253 N.J. Super. 368, 372 (App. Div. 1992). Defendant is correct that his sentence was negotiated under the Brimage guidelines. But because the State's recommended term of six years was more than the five-year minimum required by N.J.S.A. 2C:43-7a(4) for an extended term for a third-degree crime and the thirty-six month parole ineligibility term was within that required by N.J.S.A. 2C:43-6f, the judge was free to sentence defendant to a five-year term with thirty-six months of parole ineligibility in accordance with N.J.S.A. 2C:43-6f. Plea counsel cannot be termed ineffective for not advising defendant otherwise.
Defendant's claim that his PCR counsel failed to comply with his obligations under Rue is entirely without merit. PCR counsel submitted an extensive brief in support of the petition, forcefully arguing each claim defendant asserted. That counsel chose to stand on that brief and not augment it with oral argument was not a violation of his obligations to defendant. Rue, supra, 175 N.J. at 19 ("[A]s in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument.").
Finally, we reject defendant's argument that Judge Mullaney should have held an evidentiary hearing on the petition. A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. Preciose, supra, 129 N.J. at 462; R. 3:22-10(b). No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Preciose, supra, at 462-63. As defendant did not establish a prima facie case for relief, no evidentiary hearing was required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION