STATE OF NEW JERSEY v. MORRIS CROSBY, JR.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4566-07T44566-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MORRIS CROSBY, JR., a/k/a ANDRE PRICE,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 5, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-08-1194.

Yvonne Smith Segars, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Anne Marie Gibbons-Lejnieks, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the January 25, 2008 order denying his petition for post-conviction relief (PCR). On March 27, 2000, pursuant to a plea agreement, defendant pled guilty in Union County to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1. The robberies were committed five days apart in separate municipalities in Union County, and each was the subject of a separate Union County indictment. In each case, defendant was armed with a gun. Under these circumstances, the crimes were subject to the mandatory sentencing provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6c, g.

As recommended in the plea agreement, on May 5, 2000, defendant was sentenced on each count to eighteen years imprisonment, subject to the eighty-five percent parole disqualifier and five years parole supervision required by NERA; the sentences were ordered to be served concurrent to each other and also concurrent to the sentence previously imposed in Middlesex County for a third armed robbery defendant had committed there. Defendant appealed. Because his appeal pertained only to sentencing issues, it was placed on our sentencing oral argument calendar. See R. 2:9-11. We affirmed. State v. Crosby, No. A-4169-01T4 (App. Div. March 3, 2004).

Defendant then filed his PCR petition. He contended he was not advised prior to his plea in Union County of NERA's five-year parole supervision requirement. He also argued that his plea counsel was ineffective for failing to argue for a sentence lower than that recommended in the plea agreement. Defendant testified at the PCR hearing, after which Judge Triarsi rejected defendant's arguments and denied his petition.

On appeal, defendant argues:

POINT I

DEFENDANT'S PLEA SHOULD BE VACATED BECAUSE HE WAS NOT TOLD BY THE COURT AT THE TIME OF ENTRY OF HIS PLEA THAT HE WOULD HAVE FIVE YEARS OF PAROLE SUPERVISION AFTER COMPLETING HIS SENTENCE.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY FAILED TO PRESENT ANY ARGUMENT AT SENTENCING THAT SOUGHT A LESSER SENTENCE THAN THE ONE SET FORTH IN THE PLEA AGREEMENT.

We reject defendant's arguments and affirm.

The gravamen of defendant's first argument is that he was not advised prior to pleading guilty in Union County that his eighteen-year sentences, concurrent on each of the two armed robberies committed in that county, would carry with them a five-year parole supervision requirement under NERA. When entering his plea, he signed the supplemental plea form for NERA cases, which included the following question: "Do you understand that because you have plead guilty to these charges the court must impose a 5 year term of parole supervision and that term will begin as soon as you complete the sentence of incarceration?" The answer "YES" was circled. At the plea hearing, defendant provided sworn testimony, in which he acknowledged reading, understanding, and signing the form. He acknowledged that, although the handwriting on the forms was his attorney's, the answers were his. The judge who accepted the plea found defendant's answers to these questions and the remainder of his plea colloquy satisfactory and accepted the plea.

At the PCR hearing, on January 4, 2008, in sworn testimony, defendant again affirmed that he signed the supplemental NERA plea form. At first, he equivocated when asked whether he read it before signing it, by saying "Not exactly." In further questioning, he said he had not read it and that he only signed it because his attorney instructed him to do so. When confronted with the colloquy from the transcript of the plea hearing, defendant acknowledged that the answers he provided to the judge were contrary to his contention in the PCR proceeding.

Defendant's testimony in the PCR hearing further revealed that, prior to pleading guilty in Union County on March 27, 2000, he had pled guilty to his Middlesex County armed robbery charge and been sentenced, and that as a result of the Middlesex County proceedings, he was fully aware that first-degree armed robbery carried with it a five-year parole supervision requirement under NERA. Indeed, it was further pointed out that in defendant's pro se PCR petition and brief he acknowledged that he had been informed in connection with his Union County plea of the five-year parole supervision requirement.

Judge Triarsi made two significant and related factual findings, each of which supported his ultimate finding that defendant was indeed aware of the five-year NERA parole supervision requirement before he pled guilty in Union County. First, he found incredible defendant's testimony at the PCR hearing that he did not read or understand the supplemental plea form at the time of his plea. Second, he found that, based upon the knowledge defendant gained from his recent previous proceedings in Middlesex County, he was fully aware that first-degree armed robbery carried as part of its sentence a five-year parole supervision requirement under NERA.

Judge Triarsi's factual findings are well supported by substantial credible evidence in the record, and we have no occasion to disturb them on appeal. State v. Johnson, 42 N.J. 146, 162 (1964).

The specific relief defendant seeks with respect to the NERA parole supervision issue is that we remand for a materiality hearing pursuant to State v. Johnson, 182 N.J. 232 (2005). Such a hearing is required where it is first established that a defendant was not aware of the mandatory NERA parole supervision requirement, in order to determine whether that lack of knowledge was material to the defendant's decision to plead guilty and prejudiced defendant by enforcement of the plea agreement. Id. at 243. "'[T]he plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead.'" Id. at 242 (quoting State v. Howard, 110 N.J. 113, 123 (1988)).

In the circumstances here, defendant is not entitled to a materiality hearing. By seeking such relief, defendant asks us to put the proverbial cart before the horse. Defendant has not established the prerequisite for such a hearing, namely lack of knowledge of the mandatory parole supervision requirement. Because of our affirmance of Judge Triarsi's factual finding that defendant knew of the requirement at the time of his Union County plea, there is no basis for a materiality hearing to determine whether he would have pled guilty if he possessed that knowledge. On the contrary, defendant did possess that knowledge.

Defendant's second assertion is that he was denied the effective assistance of counsel because his attorney did not argue for a lower sentence. Defendant does not suggest what arguments could have been made or how they might have succeeded. Indeed, after noting defendant's extensive prior record, Judge Triarsi also made a finding on that subject: "So, the Judge here had before . . . her, a man who has been convicted of three robberies. I can't imagine a lesser number than an 18. He was lucky to get that." We agree.

On direct appeal, we found nothing improper or excessive about defendant's sentence. The sentencing judge properly found three aggravating factors and no mitigating factors. The sentences for these two unrelated crimes were ordered to be run concurrent to each other and concurrent to the sentence on a third unrelated armed robbery. Defendant has provided no basis for satisfying either prong of the Strickland/Fritz test with respect to his attorney's representation at sentencing. By failing to suggest any plausible arguments for a lower sentence that his attorney could have made, defendant has failed to provide a basis for demonstrating deficient conduct. He has also failed to show how any such arguments would have had the likelihood of changing the result.

 
Affirmed.

Defendant's verified PCR petition contains the following statement: "Although defendant was told that he would have five years of parole supervision pursuant to NERA, defendant was not informed that he could actually serve more than 18 years in the event of any violation of parole." In his pro se PCR brief, referring to the Union County plea, he stated that "this defendant was informed that he was pleading to charges that qualified him for sentencing under NERA, and that he would have to serve 85% of the 18 year Union County sentence, and 15 years of the Middlesex County sentence; as well as have five years of parole as part of that sentence."

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-4566-07T4

October 27, 2009