STATE OF NEW JERSEY v. CHRISTOPHER M. CHAVIES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0786-07T40786-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER M. CHAVIES,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 1, 2009 - Decided

Before Judges Baxter and King.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-1492.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent, (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Christopher M. Chavies, appeals from a July 30, 2007 order that denied his petition for post-conviction relief (PCR). Defendant maintains that the judge erred when she denied his PCR petition without conducting an evidentiary hearing on his claim that trial counsel was ineffective because he failed to advise defendant that he would not be awarded jail credit for the time served from the date of his arrest through the day of sentencing. We conclude that Judge Stolte properly denied defendant's petition without affording him an evidentiary hearing, and affirm.

I.

On August 25, 1998, defendant was arrested and charged with the murder of his girlfriend, Lora M. Freyer. At the time of that arrest, defendant was on parole for an armed robbery. On August 26, 1998, one day after he was arrested for Freyer's murder, defendant was charged with violating parole, based upon his arrest on the murder charge. On September 1, 1998, the Parole Board imposed a parole violation sentence of two years, seven months and six days. Thus, the parole violation sentence would have ended on approximately April 7, 2001.

On February 10, 2000, a jury returned guilty verdicts on the murder charge and on the additional charges of hindering apprehension, credit card theft and unlawful use of a credit card. For a reason that is unclear from the record, at the time of original sentencing on April 10, 2000, the judge awarded jail credit not only for August 25 and 26, 1998, but also for the sixty-one days between February 10, 2000 and the day of sentencing, April 10, 2000. We reversed defendant's conviction on the murder charge, affirmed his conviction on the charges of hindering apprehension, credit card theft and unlawful use of a credit card, and remanded for a new trial on the murder charge. State v. Chavies, 345 N.J. Super. 254, 260 (App. Div. 2001).

On April 15, 2002, before the retrial could take place, defendant entered a negotiated plea of guilty, in which he agreed to plead guilty to an amended charge of aggravated manslaughter in return for a recommended sentence of twenty-two years imprisonment, subject to an 85% parole disqualifier. The plea agreement specifically provided that defendant's sentence on aggravated manslaughter and the related charges would be concurrent to the parole violation sentence defendant was then serving. During the plea colloquy on April 15, 2002, defense counsel questioned defendant about his understanding of the interplay between the parole violation sentence and the sentence on the aggravated manslaughter charge. The following discussion occurred:

Q. Now, you're presently serving a parole violation sentence, correct? . . . You understand that your parole eligibility on that sentence could be affected by the fact that you're pleading guilty to this one?

A. Yes.

Q. Now, the prosecutor has made you a plea offer. And the plea offer is twenty-two years in the State Prison with an eighty-five percent period of parole ineligibility . . . . And that it's all going to be made concurrent to your parole violation. . . . Do you understand that?

A. Yes.

Q. Other than what I just went through, has anybody promised you anything else? Anything else to get you to plead guilty?

A. No.

[Emphasis added.]

After defendant provided a factual statement describing his role in Freyer's death, the judge accepted defendant's guilty plea and proceeded with sentencing, rather than defer it to a later date. The judge observed that the only change necessary to the pre-sentence report would be a modification of the jail credits to which defendant was entitled. At that moment, the assistant prosecutor commented, "I don't think he's entitled to any jail credit. I believe he was still serving his parole violation." Defense counsel did not contradict that statement. After members of the victim's family addressed the court, the judge asked defendant if he wished to make any remarks prior to sentencing. Defendant answered "no."

The judge then imposed the sentence that we have already described. Defense counsel reminded the judge that defendant was entitled to sixty-three days of jail credit. The judge commented, "That is correct." The judge also agreed that the parole violation sentence would be concurrent to the sentence imposed on the aggravated manslaughter and related offenses.

At no time during the sentencing proceeding on April 15, 2002, did defendant or his attorney question the judge's decision to limit the jail credits to sixty-three days. Although the judge prepared a judgment of conviction (JOC) on April 15, 2002, he omitted the provision that defendant's sentence would run concurrent to the parole violation sentence. Consequently, the judge issued an amended JOC, specifying that the sentence would be concurrent to the parole violation sentence. In all other respects, the amended JOC was identical to the JOC signed on April 15, 2002.

Defendant filed a timely PCR petition in which he presented the following arguments: 1) the court should permit him to withdraw his guilty plea to the charge of aggravated manslaughter because "he was denied a material element of his plea bargain, which was jail credit for all of his parole violation time"; 2) because he established a prima facie case on his claim of ineffective assistance of counsel, he was entitled to an evidentiary hearing; and 3) in the alternative, the judge should amend the JOC to award him full credit for his "parole violation time," August 25, 1998 through April 10, 2000, rather than merely the sixty-three days the judge awarded.

In a written opinion, Judge Stolte held that defendant failed to show counsel's performance was deficient. She pointed to a certification filed by trial counsel, in which counsel asserted he had advised defendant, before defendant entered his guilty plea, that it was "doubtful the judge would grant full retroactive concurrency." The judge also reasoned that nothing in the plea agreement, either in the plea papers defendant signed or as set forth on the record in open court, promised defendant that he would be given "full day-to-day credit." Judge Stolte concluded that "the plea defendant entered into is exactly what [defendant] received. . . . [He] never questioned the [terms of the] plea. He responded on the plea form that he was satisfied with the advice of counsel and . . . he responded . . . in open court that there were no other promises made to him." The judge concluded that defendant had not satisfied his burden of proof, and accordingly denied his petition.

II.

Although a motion to withdraw a guilty plea filed at or before the time of sentencing will be granted in the "interest[] of justice," R. 3:9-3(e), a "post-sentencing motion[] must meet a higher standard of 'manifest injustice' to succeed, R. 3:21-1." State v. Slater, ___ N.J. ___, ___ (2009) (slip op. at 10). We review the denial of plea withdrawal motions for an abuse of discretion. Ibid.

In Slater, the Court identified four factors that must be evaluated regardless of whether the motion is made before or after sentencing: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 13. Although these four factors apply regardless of the timing of the application, "the weighing and balancing process will differ depending on when a motion is filed . . . ." Ibid.

We turn now to an application of these four factors. As to the first, we note that defendant has made no claim of innocence, "colorable" or otherwise. The third factor, which addresses plea bargains, likewise favors the State, because the guilty plea was entered pursuant to a negotiated plea of guilty. The fourth factor, prejudice to the State, or unfair advantage to the defendant, also favors the State because requiring the State to retry the case -- when seven years have now elapsed since defendant's guilty plea on April 15, 2002 -- would cause unfair prejudice to the State.

We turn now to the final Slater factor, "the nature and strength of defendant's reasons for withdrawal." Ibid. As Judge Stolte correctly found, nothing in the record supports defendant's contention that he was ever promised he would be awarded jail credits for the interval between August 27, 1998 and February 9, 2000. Indeed, trial counsel's certification demonstrates that counsel advised defendant, before defendant entered his guilty plea in open court, that it was doubtful that the judge would award him "full retroactive concurrency." Defendant has submitted no certification to challenge trial counsel's account.

Moreover, as the record demonstrates, when defendant entered his guilty plea in open court on April 15, 2002, defendant agreed that the only promise the State had made was to recommend a twenty-two-year sentence that would run concurrent to the parole violation sentence. In fact, when defendant was asked whether anybody had promised him anything else, he specifically answered "no." Moreover, before defendant's sentence was actually pronounced, the prosecutor commented that defendant was not entitled to jail credit because "he was still serving his parole violation," and neither defendant nor trial counsel disagreed. At no point during the sentencing proceedings did defendant interpose any objection to the sixty-three days that were awarded. In sum, the record amply supports Judge Stolte's conclusion that "the plea defendant entered into is exactly what he received." Consequently, as Judge Stolte properly concluded, "defendant's reason for seeking to withdraw from his guilty plea is entirely devoid of merit." Thus, defendant has not satisfied the final Slater factor, "the nature and strength of defendant's reason for withdrawal." Under those circumstances, the denial of defendant's motion to withdraw from his plea agreement was correct.

Wholly apart from defendant's failure to satisfy any of the Slater factors, there is yet another reason why defendant's claim of ineffective assistance should have been rejected. When a defendant is serving a parole violation sentence at the same time he is incarcerated while awaiting trial on a new charge, his confinement is attributable to the parole violation sentence. State v. Black, 153 N.J. 438, 461 (1998). To award defendant additional one-for-one jail credit attributable to the pending indictment "would bestow upon him an impermissible double credit." Id. at 457 (quoting State v. Allen, 155 N.J. Super. 582, 585 (App. Div.), certif. denied, 77 N.J. 472 (1978)). Thus, an award of jail credit for the time defendant was serving his parole violation sentence would have been unauthorized.

For all of the above reasons, Judge Stolte properly concluded that defendant's motion to withdraw his guilty plea was meritless. It stands to reason that if defendant was never promised an award of jail credit for the days in question, and such award would have been impermissible and unauthorized, counsel's performance cannot be deemed ineffective because he failed to secure such an award of jail credits. Therefore, the denial of defendant's PCR petition was correct and wholly in accord with governing precedents.

Affirmed.

Rule 3:21-2(a).

Because the amended JOC also bears the date of April 15, 2002, we are unable to determine the precise date upon which it was prepared and signed.

The judge who presided over the PCR proceedings was not the same judge who had presided over the trial.

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10

A-0786-07T4

April 20, 2009