STATE OF NEW JERSEY v. JERRY SAPP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1994-07T41994-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERRY SAPP,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 25, 2009 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-08-1501.

Yvonne Smith Segars, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Jerry Sapp, appeals from a September 14, 2006 order that denied his petition for post-conviction relief (PCR). Before the Law Division, defendant claimed that trial counsel was ineffective because he misinformed defendant concerning the maximum sentencing exposure defendant faced if convicted at trial. The PCR judge rejected that claim without conducting an evidentiary hearing. We affirm.

I.

The State's proofs elicited at trial established that on April 14, 2001, defendant accosted Paul and Marlene Marcinkowsky, and Loretta Madrigale, Marlene's mother, as the three were entering their automobile in the garage of an Atlantic City casino. After grabbing Marlene, defendant pushed her into the vehicle that her husband and mother had already entered, and held a knife to her throat while demanding money. As Marlene struggled to push the knife away, defendant announced that he had a gun in his pocket and would "blow [her] f---ing head off."

The jury returned a guilty verdict on three counts of first-degree robbery. After granting the State's motion to sentence defendant to an extended term of imprisonment, Judge Donio sentenced defendant for the robbery committed against Paul to a fifty-year term of imprisonment, with a twenty-five year period of parole ineligibility. That sentence was concurrent to a fifteen-year sentence, with a twelve-year, nine-month period of parole ineligibility, for the robbery committed against Loretta. The judge imposed a consecutive twenty-year term of imprisonment, subject to a seventeen-year period of parole ineligibility, for the robbery committed against Marlene. The aggregate sentence was thus seventy years imprisonment, of which forty-two years was required to be served without parole.

We affirmed defendant's conviction on direct appeal. State v. Sapp, No. A-3230-02 (App. Div.) (slip op. at 6), certif. denied, 183 N.J. 214 (2005). We remanded the sentence for an explanation of why the judge ordered the shorter sentence--for the robbery committed against Marlene--to be served before the longer sentence imposed for the other two robberies. Id. at 15-16. We rejected defendant's remaining sentencing arguments. Id. at 9-10.

Defendant filed a timely PCR petition in which he asserted that trial counsel was ineffective because counsel "advised [defendant] that he did not think [defendant] would receive the maximum sentence of seventy years." Defendant further maintained that he "was never afforded the opportunity to plead out" and thereby avoid exposure to the maximum penalty of seventy years imprisonment.

Judge Donio, who was also the trial judge, rejected that claim without affording defendant an evidentiary hearing. The judge reasoned:

[Defendant] absolutely positively was offered a plea agreement. My best memory is that it was 10 or 15 years NERA. I know that the record will show that I had those discussions with him on the record and he intelligently and knowingly and voluntarily indicated he wanted to go to trial. [It] [s]hould be noted at the outset that [defendant] went to trial with competent and experienced trial counsel, [who] tried as good a case as could be tried under the facts of the case where the proofs were extremely, extremely strong.

. . . .

Furthermore, defendant was well aware of the maximum type of sentence that he could receive if convicted. I remember before you went to trial it was brought out and he was adamant that he wanted a trial. So he got his trial, and the jury did not buy his specious type of defense that was put up.

Consequently, the judge denied defendant's claim of ineffective assistance of counsel. On appeal, defendant raises a single claim:

THE PCR COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S PETITION WITHOUT GRANTING AN EVIDENTIARY HEARING ON THE ISSUE OF WHETHER DEFENDANT WAS AFFORDED AN OPPORTUNITY TO ENTER INTO A PLEA AGREEMENT PRIOR TO TRIAL AND WHETHER HE WAS FULLY ADVISED OF THE PENAL CONSEQUENCES OF BEING CONVICTED OF THE CHARGES AFTER A TRIAL.

II.

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 688 n.26 (1984).

Defendant contends that Judge Donio erred by not affording him the opportunity of an evidentiary hearing during which he could have presented witnesses to establish that counsel was ineffective. Defendant's argument misperceives the holding of State v. Preciose, 129 N.J. 451, 462 (1992). The PCR judge is required to afford the defendant an evidentiary hearing only if the defendant establishes a prima facie case. Ibid. The unsubstantiated allegations of a defendant do not constitute a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). In the Law Division, defendant presented nothing other than his own allegations. Indeed, he failed to even support those allegations with a sworn statement. Under those circumstances, Judge Donio was not required to afford defendant an evidentiary hearing. Ibid.

Moreover, as the State correctly argues, defendant has failed to produce a transcript of the pretrial conference. During that proceeding, the assistant prosecutor is required to explain to defendant, in considerable detail, the evidence the State intends to produce at trial, and the judge is required

to explain and discuss defendant's sentencing exposure.

R. 3:91-(e).

 
We agree with the State's argument that the transcript of the Rule 3:9-1(e) pretrial conference would provide the best evidence of the information trial counsel and the judge provided to defendant concerning his sentencing exposure. We, like Judge Donio, are disinclined to accept defendant's bald and unsupported allegations concerning the misinformation trial counsel allegedly provided, when a transcript of the pretrial conference, had it been ordered, could easily have revealed the actual discussion that occurred among counsel, defendant and the judge. Judge Donio was entitled to reject those unsubstantiated allegations of counsel's alleged ineffectiveness. The judge was also entitled, in light of the absence of any proof, to decline to set the matter down for a hearing because defendant failed to establish a prima facie claim of ineffective assistance of counsel.

Affirmed.

The State's motion was filed pursuant to N.J.S.A. 2C:44-3(a).

In relevant part, Rule 3:9-1(e) provides:

[T]he judge shall conduct a pretrial conference. The conference shall be conducted in open court with the prosecutor, defense counsel and the defendant present. Unless objected to by a party, the court shall ask the prosecutor to describe, without prejudice, the case including the salient facts and anticipated proofs and shall address the defendant to determine that the defendant understands: (1) the State's final plea offer, if one exists; (2) the sentencing exposure for the offenses charged, if convicted; (3) that ordinarily a negotiated plea will not be accepted after the pretrial conference has been conducted and a trial date has been set. . . . [A] pretrial memorandum shall be prepared in a form prescribed by the Administrative Director of the Courts. The pretrial memorandum shall be reviewed on the record with counsel and the defendant present and shall be signed by the judge who, in consultation with counsel, shall fix the trial date. (emphasis added).

(continued)

(continued)

7

A-1994-07T4

March 12, 2009