STATE OF NEW JERSEY v. JAMES BLUE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1689-07T41689-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BLUE,

Defendant-Appellant.

______________________________

 

Submitted February 10, 2009 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-06-0606.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Blue appeals from the April 13, 2007 order denying his petition for post-conviction relief (PCR). We affirm without prejudice to defendant filing a motion in the Law Division to withdraw his plea.

I.

On June 1, 2004, defendant was charged by a Burlington County Grand Jury with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Five). On January 12, 2005, defendant entered into a negotiated plea agreement, pleading guilty to Count Two in exchange for the State dismissing the remaining counts of the indictment and recommending an eight-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Because the negotiated sentence was above the then-presumptive term of seven years, defendant executed a supplemental plea waiver form acknowledging that the trial judge would determine all aggravating and mitigating sentencing factors.

On May 26, 2005, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(1), (3), and (9), and no mitigating factors, the trial judge sentenced defendant in accordance with the plea agreement to a term of eight years of imprisonment with an 85% period of parole ineligibility. The judge also ordered that defendant serve a three-year term of parole supervision on release from prison and dismissed the remaining counts of the indictment.

Defendant did not appeal from the judgment of conviction. However, on March 31, 2006, defendant filed a pro se petition for PCR, arguing that his sentence was illegal because it exceeded the then-existing seven-year presumptive terms for a crime of the second degree, citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

In December 2006, counsel filed an amended petition, arguing that defendant was denied effective assistance of trial counsel because his attorney failed to: 1) "follow [d]efendant's request to pursue a trial and to present the defense of self[-]defense to a jury"; 2) "call witnesses who would have supported the defense theory of the case had the matter proceeded to trial"; 3) "withdraw the plea of guilty that was entered by the [d]efendant prior to [his] sentencing hearing"; and 4) "present and effectively argue mitigating factors during [his] sentencing hearing." In addition, defendant contended that his sentence was unconstitutional because it was based on facts, not decided by a jury, citing State v. Natale, 184 N.J. 458, 466 (2005).

On March 30, 2007, having determined that an evidentiary hearing was not warranted, the trial court denied defendant's petition. The court entered a confirming order on April 13, 2007.

On appeal, defendant argues:

POINT I.

[DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF [TRIAL] COUNSEL.

POINT II.

[DEFENDANT] IS ENTITLED TO A HEARING DUE TO THE INEFFECTIVE ASSISTANCE OF PCR COUNSEL. (NOT RAISED BELOW).

POINT III.

THE COURT'S DENIAL OF [DEFENDANT'S] PETITION MUST BE REVERSED BECAUSE THE COURT FAILED TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY R. 3:22-11. (NOT RAISED BELOW).

II.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992).

Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington. Preciose, supra, 129 N.J. at 463-64; see also State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered defendant's arguments in light of the record and applicable law. We are satisfied that the argument in Point III is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Nor are we convinced of defendant's argument in Point I, that he was denied effective assistance of trial counsel when he was sentenced to an eight-year term of incarceration, subject to NERA. Defendant argues, as he did at the hearing on his petition for PCR, that he was informed by his attorney at the time of his plea, his sentence would be for a five-year term, and that when the court imposed an eight-year term instead, his attorney reassured him that he would correct it on appeal. The record does not support defendant's argument.

The plea form indicates that defendant agreed to plead to Count Two, second-degree aggravated assault, and that the maximum term of incarceration that he was exposed to on conviction was ten years. The plea form also states that the prosecutor had agreed to recommend a sentence of eight years of imprisonment, subject to an 85% period of parole ineligibility. Moreover, at the plea hearing, the transcript reflects that the prosecutor, defense counsel and the court either informed defendant directly, or made statements in his presence, explaining the sentence the State had agreed to recommend:

Prosecutor: [I]t's my understanding today that [defendant] will be pleading guilty to Count Two . . . which charges him with second[-]degree aggravated assault. Your Honor, in exchange for the plea to that particular charge the negotiated plea in this case calls for [defendant] to be sentenced to eight years [in] New Jersey State Prison. This is a case that is under the No Early Release Act. He would have to serve 85 percent of his sentence before he would be eligible for parole. That is set forth in the plea form,, the eight-year sentence, as well as the fact that he would not be eligible for parole until he has served 85 percent of the sentence.

. . . .

Defense Counsel: Thank you, Your Honor. The representations by the State . . . are in accord with our understanding of the negotiated plea. . . . [The Prosecutor] and I had the opportunity to meet together last week to address this case as we both prepared it for trial, and in our discussions and looking -- going over the evidence we both presented what we feel are the strengths and/or the weakness[es] of our case, and I made an offer to him and he made a [counteroffer]. We met at the eight years, 85 percent number that . . . we're here on today.

. . . .

The Court: Now, do you understand that the State is recommending the following sentence: that at the time of sentence I sentence you to an eight-year New Jersey State Prison term; do you understand that?

Defendant: Yes.

The Court: And that you [will] have to serve 85 percent of that term which is six years, nine months and 22 days before you [are] eligible for parole; do you understand that?

Defendant: Yes, sir.

. . . .

The Court: Other than the agreement as placed on the record, were any promises made to you to get you to plead guilty?

Defendant: No.

Because defendant's argument was only supported by his bold assertion of alleged statements told to him by his attorney at time of the plea and sentence, we conclude in light of the overwhelming evidence in the record to the contrary, that the trial court properly rejected defendant's argument without conducting an evidentiary hearing. However, we are satisfied that defendant's remaining argument in Point I and his argument in Point II have merit.

Defendant argues that he was never informed prior to the court accepting his plea that he would be required to serve a three-year period of parole supervision on release from prison. Defendant contends that he was denied effective assistance of trial counsel when his attorney never informed him that he would be subject to the three-year term of parole supervision, and but for his trial attorney's "deficient performance, [he] would not have pled guilty to an eight[-]year sentence." Defendant argues that he was denied effective assistance of PCR counsel when his attorney failed to raise the issue in the Law Division.

Rule 3:9-2 governs the taking of pleas; in particular, it mandates that a court not accept a guilty plea to a criminal charge without first "determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2. "The specificity and rigor embodied in Rule 3:9-2 manifest a systemic awareness that a defendant waives significant constitutional rights when pleading guilty, which places an affirmative obligation on a court to reject a plea of guilty when that court is not independently satisfied that the Rule's prerequisites are met." State ex rel. T.M., 166 N.J. 319, 326 (2001).

In determining whether a defendant understands the consequences of his or her plea, "the court must ensure that defendant [has been] informed of the direct penal consequences of the plea, generally, those relating to sentencing." Pressler, Current N.J. Court Rules, comment 1.4.1 on R. 3:9-2 (2009). A trial court must inform a defendant of the maximum custodial sentence and fine that may be imposed for the offense to which he or she is pleading before the court accepts the plea. State v. Johnson, 182 N.J. 232, 241 (2005) ("hold[ing] that being subject to NERA's mandatory period of parole supervision constituted a direct, penal consequence of [a] defendant's plea" entitling the defendant to seek vacation of the plea); State v. Kovack, 91 N.J. 476, 481-82 (1982) (vacating a defendant's sentence and remanding on the ground that the defendant had not been informed of his exposure to a period of parole ineligibility as part of his sentence prior to entering his or her guilty plea). Simply stated, "[w]hen one enters a plea of guilty, [one] should be told what is the worst to expect." Kovack, supra, 91 N.J. at 483 (quoting Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969)).

Here, neither the plea form nor the transcript of the plea proceeding contain any evidence indicating defendant was informed by the court, the prosecutor or his attorney, that if the court accepted his plea, in addition to serving an eight-year term of imprisonment subject to NERA, he would also be required to serve a mandatory three-year period of parole supervision on release from prison. N.J.S.A. 2C:43-7.2c. In fact, the only indication that defendant was informed of that penal consequence was at the end of the sentencing proceeding where, after the court imposed the eight-year term of imprisonment and the period of parole ineligibility, the court stated: "[o]nce he is released from prison he will have to serve a minimum of three years parole supervision." This passing statement at the end of the sentencing proceeding fails to satisfy the trial court's obligation to inform a defendant of all direct penal consequences prior to accepting a plea and imposing sentence. R. 3:9-2; Johnson, supra, 182 N.J. at 241. Accordingly, we remand to the Law Division to permit defendant to file a motion to withdraw his plea in accordance with the procedures established in Johnson. Id. at 241-44.

 
Affirmed, without prejudice to defendant filing a motion in the Law Division to withdraw his plea.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

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A-1689-07T4

May 7, 2009