STATE OF NEW JERSEY v. KELVIN VICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4413-04T44413-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELVIN VICK,

Defendant-Appellant.

 

Submitted May 23, 2006 - Decided June 22, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-04-0846.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kelvin Vick appeals from the April 1, 2005 denial of his petition for post-conviction relief (PCR). We affirm.

In 1998, defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3a(1),(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; three counts of second-degree aggravated arson, N.J.S.A. 2C:17-1a; third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). Following negotiations through counsel, he entered a plea of guilty to the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, in exchange for which all of the other counts in the indictment were dismissed.

As a part of that plea agreement, the prosecutor agreed to recommend that defendant be sentenced to a term not to exceed the presumptive twenty-year term applicable to that offense and which would be served concurrently with a prior sentence defendant was then serving. The agreement left it to the judge to decide the issue of whether the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, would apply. During the plea hearing, defendant acknowledged that the plea was knowing and voluntary and he acknowledged that he was aware that the judge had determined that NERA would apply to the sentence based on the facts surrounding the offense to which defendant had admitted.

In relevant part, defendant admitted during the plea colloquy that he knew the victim and that he had "beat[en] him to death in his bed . . . [w]ith a two-by-four . . . [by striking him a]bout the head." Although asserting through counsel that he had not been aware of precisely what part of the victim's body he was striking with the wooden board, he admitted that his "actions were reckless, that they caused death, and they were done under circumstances manifesting extreme indifference to [the victim's] life." The prosecutor explained as well that the State had agreed to the plea deal because defendant's actions had occurred while he was intoxicated and because there was "no allegation that his purpose was to kill [the victim] because [the victim] was in fact his friend, but he thought there was another person there that he was trying to injure and he was very reckless . . . ."

On July 15, 1999, defendant was sentenced in accordance with the terms of the plea agreement. As a part of that sentence, the judge imposed a term of twenty years, to which NERA applied, and he advised defendant that NERA also mandated that defendant serve a period of five years of parole following his release.

Defendant pursued an appeal. His appellate counsel raised only arguments relating to the sentence and the matter was heard on the Excessive Sentencing Oral Argument calendar. In addition to the arguments advanced by counsel, defendant filed a pro se brief on appeal in which he raised numerous arguments, including an attack on the application of NERA to the offense to which he had entered his guilty plea and an argument that the plea was not knowing or voluntary because he had not been advised of the post-release parole requirement included in NERA. Defendant's appellate counsel requested that defendant's pro se brief be considered and specifically called these arguments to the attention of the appellate judges who heard the oral argument on appeal. Defendant's conviction was affirmed. State v. Vick, No. A-1511-00T4 (App. Div. May 9, 2002). The Supreme Court thereafter denied defendant's petition for certification. State v. Vick, 175 N.J. 171 (2002).

Defendant filed his PCR petition in December 2004, raising arguments about the effectiveness of both his trial counsel and his appellate attorney. In particular, he contended that his trial counsel failed to advise him about NERA's five-year parole requirement and its effect on him following his release and failed to advise him about his right to a trial about the applicability of NERA to the facts to which he was pleading guilty. In addition, he contended that he was deprived of the effective assistance of appellate counsel because the arguments in his pro se petition were not raised before the appellate court in a plenary appeal.

The PCR judge, who had also been the judge who had taken defendant's plea and who had imposed sentence on him, convened a hearing on the PCR petition. Defendant testified that his trial lawyer assured him that once he had served eighty-five percent of the sentence, he would "be finished" and that neither the attorney nor the judge had alerted him to the NERA five-year parole requirement, which he referred to as the "parole tail." He testified that he first became aware of the parole tail when he subsequently received a letter from the Parole Board. He further testified that had he been aware of the additional parole requirement, he would have rejected the plea offer and would have insisted on proceeding to trial. When the judge read to him the portion of the sentencing transcript in which the parole period was discussed, defendant could not explain why he did not object or express surprise. Nor could he explain his earlier testimony that he had never been told about the parole tail prior to receiving the letter from the Parole Board.

Defendant's trial counsel also testified at the PCR hearing. He testified that, at the time of defendant's plea and sentence, defendant was facing a life term for the first-degree murder charge, to which it appeared that NERA would apply and that he had succeeded in having the prosecutor agree to accept a plea to the aggravated manslaughter term with a maximum twenty-year sentence instead. He testified that he could not specifically recall his discussions with defendant but testified that because NERA was a new statute at the time of defendant's plea, he would have discussed with defendant, as with all affected clients, its two critical features, which were the mandatory period without parole and the additional parole supervision, or parole tail, requirement. He recalled that because these two new aspects represented such a major change in sentencing, he and the other public defenders were specifically advised about them and were instructed to be careful about them. He also recalled, therefore, making it his practice to discuss both aspects of the law with all defendants facing a NERA sentence.

Following the close of the testimony and after considering the arguments of PCR counsel, the judge denied the petition. He found that defendant's assertions of fact were not credible, particularly in light of his inconsistent assertions during the PCR hearing itself as to when he learned about the parole requirement. He further rejected as incredible defendant's argument that he would have rejected the plea offer and stood trial for first-degree murder had he been advised about the parole tail. In contrast, the judge noted that defendant's trial lawyer's testimony was credible, referring to the lengthy course of the pre-trial proceedings and plea negotiations and commenting on the fact that the plea offer counsel secured and defendant accepted was very favorable to defendant in light of the crime. The judge therefore rejected defendant's assertions that he had been denied the effective assistance of trial counsel in relationship to the plea agreement.

On appeal, defendant asserts that the PCR judge erred in his analysis of the effectiveness of his trial counsel and that he was deprived of the effective assistance of appellate counsel as well. We disagree.

Defendant contends on appeal that he was entitled to be advised about all of the consequences of NERA on his sentence as a part of his discussions about entering a guilty plea and that he is entitled to seek to vacate that plea because he was not so informed. Plainly, defendant is correct in his assertion as to his rights. See State v. Rosado, 182 N.J. 245, 246 (2005); State v. Johnson, 182 N.J. 232, 241 (2005); State v. Freudenberger, 358 N.J. Super. 162, 165 (App. Div. 2003). Nevertheless, in the absence of evidence in the record demonstrating that he was in fact not so advised by counsel or by the court, there is no ground for relief.

We first note that defendant was afforded an evidentiary hearing for the purpose of creating a factual record in support of his contention that his trial lawyer failed to advise him about the parole tail. See State v. Preciose, 129 N.J. 451, 459 (1992). On appeal, he makes no argument, nor could he, about the adequacy of that opportunity, but attacks the findings and conclusions of the PCR judge based on that record. In our review, therefore, we utilize the standards that generally govern our review of factual findings of a trial judge, deferring to those findings, to the extent that they are supported by substantial credible evidence in the record. See State v. Locurto, 157 N.J. 463, 472 (1999). In particular, where the findings are based on a judge's decisions as to credibility, we defer. Ibid.

Utilizing that standard of review, we find no basis on which to interfere with the PCR judge's findings and conclusions. His explanation of the basis for his decision that defendant's trial counsel was credible, while defendant was not, was both careful and thorough. The record amply supports the PCR judge's decision, following the evidentiary hearing, that counsel advised defendant about all of the NERA consequences of the plea before he accepted it and that his election to accept the plea offer was both voluntary and knowing.

Nor do we find any merit in defendant's assertion that he was deprived of the effective assistance of counsel in his direct appeal. Appellate counsel raised each of the arguments concerning NERA and his sentence that he requested be raised. See State v. Rue, 175 N.J. 1, 19 (2002). Each of those arguments was considered during the direct appeal and found to be wanting. We reject the contention, implicit in this appeal, that the outcome of those arguments could have been any different had they been the subject of further briefing on the plenary appellate calendar rather than being considered, as they were, as a part of the Excessive Sentencing Oral Argument Calendar.

 
Affirmed.

Prior to the Supreme Court's decision in State v. Manzie, 168 N.J. 113 (2001), it was widely believed that NERA would apply to a murder conviction as well.

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A-4413-04T4

June 22, 2006