STATE OF NEW JERSEY v. LOUIS R. SHEARN, JR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6616-06T46616-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS R. SHEARN, JR.

Defendant-Appellant.

_________________________________________

 

Submitted February 24, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 00-02-0165.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Joseph J. D'Onofrio, Jr., Assistant Prosecutor, on the statement in lieu of brief).

PER CURIAM

Defendant Louis R. Shearn, Jr., appeals from the order of June 26, 2007, denying his post-conviction relief application. The appeal is unopposed.

Defendant was charged with first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2); first degree robbery, N.J.S.A. 2C:15-1; first degree car jacking, N.J.S.A. 2C:15-2(a)(1); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third degree theft, N.J.S.A. 2C:20-3.

On August 15, 2000, pursuant to a plea agreement, defendant pled guilty to the attempted murder charge, with the understanding that the balance of the charges would be dismissed, another indictment for unrelated charges would also be dismissed, the sentence would run concurrently with a sentence he was then serving, and his custodial sentence would not exceed seventeen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant thereafter moved to withdraw that plea, and the motion was granted on April 25, 2001.

On June 11, 2001, defendant pled guilty a second time to the attempted murder charge pursuant to an identical plea agreement. His subsequent motion to withdraw this second plea was denied.

On July 2, 2001, the trial court sentenced defendant pursuant to the plea agreement to seventeen years in state prison for attempted murder, subject to an eighty-five percent period of parole ineligibility, and to five years of parole supervision upon release. The sentence was to run concurrent with the sentence defendant was then serving. Defendant received credits of 162 days for time served and 520 days for gap time. The trial court imposed the mandatory penalties and assessments. The remaining counts in the indictment and the unrelated indictment were dismissed.

On direct appeal, we affirmed the conviction. State v. Shearn, No. A-1355-01 (App. Div. May 15, 2003). Defendant then filed a petition for post-conviction relief which was denied by the trial court on June 26, 2007. Defendant now appeals that decision, raising the following issues:

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES

REGARDING CLAIMS OF INEFFECTIVE

ASSISTANCE OF COUNSEL, EVIDENTIARY

HEARINGS AND PETITIONS FOR POST-

CONVICTION RELIEF.

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE

OPPORTUNITY TO RAISE CERTAIN ISSUES

PREVIOUSLY DOES NOT APPLY TO APPELLANT'S

CASE.

C. DEFENDANT IS ENTITLED TO POST-CONVICTION

RELIEF AS HIS ATTORNEY IMPROPERLY

ADVISED HIM AS TO THE CONSEQUENCES OF

HIS PLEA BY TELLING DEFENDANT HE WOULD

RECEIVE GAP CREDITS TO REDUCE HIS

SENTENCE.

D. DEFENDANT SHOULD BE ALLOWED TO WITHDRAW

HIS PLEA AS ORIGINAL COUNSEL WAS

CONSTITUTIONALLY INEFFECTIVE FOR GIVING

DEFENDANT IMPROPER ADVICE AS TO GAP

CREDIT AND AS SUBSEQUENT COUNSEL ALSO

WAS INEFFECTIVE FOR NOT PROPERLY

ADVISING DEFENDANT OF THE PROPER

STANDARDS TO BE EMPLOYED AND FAILED TO

ADVISE THE DEFENDANT OF RECENT CASE

DECISIONS.

Post-conviction relief is appropriate where a defendant's substantial constitutional rights were violated in the conviction proceedings. R. 3:22-1(a). Claims of ineffective assistance of counsel implicate a defendant's constitutional right to counsel under both the federal and state constitutions, Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 58 (1987), and are properly raised in post-conviction relief proceedings. See State v. Preciose, 129 N.J. 451, 460 (1992) (stating that ineffective assistance of counsel claims were "particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding"). A defendant's constitutional right to counsel is violated where "counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction." State v. Fritz, supra, 105 N.J. at 58.

Ordinarily, an evidentiary hearing will be held on ineffective assistance of counsel claims, provided defendant has made out a prima facie claim for post-conviction relief. State v. Preciose, supra, 129 N.J. at 462-63. In determining whether defendant has done so, the court must look at the facts from the perspective most favorable to defendant. Ibid. In order to establish a prima facie case, defendant must establish two elements: (1) that his attorney's performance was deficient and (2) that without these deficiencies, in reasonable probability, "the result of the proceeding would have been different." Id. at 463-64 (quoting Strickland v. Washington, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Before a guilty plea may be accepted, the law requires that the defendant be fully apprised of the direct and penal consequences of his guilty plea. State v. Johnson, 182 N.J. 232, 236 (2005). When a defendant has not been accurately advised of the maximum time he will serve, the plea may not meet the constitutional requirement that it be "voluntarily, intelligently and knowingly entered." Sheil v. N.J. State Parole Bd., 244 N.J. Super. 521, 528 (App. Div. 1990) (quoting State v. Alevras, 213 N.J. Super. 331, 338 (App. Div. 1986)), appeal dismissed, 126 N.J. 308 (1991). Before taking a plea, the trial court must advise a defendant of the maximum period of parole ineligibility that may be imposed at sentencing. Ibid. If a defendant is incorrectly told that gap time will reduce his period of parole ineligibility then that misunderstanding implicates the constitutional requirement that the plea be voluntarily, intelligently and knowingly made. See ibid. (concluding that defendant's reasonable expectations may not have been met where the jail credits he was given at sentencing improperly included gap time thereby changing the length of his parole ineligibility period).

Defendant contends that when he pled guilty to the charges, he did not understand fully the penal consequences of the sentence. He states in his certification in support of his PCR petition that "I also entered my plea based on the representation that I would receive 520 days of gap time credits, which have not been deducted from my sentence because of the contradictions from the No Early Release Act, which was never explained to me." His brief argues that he thought the gap time credit would reduce the amount of time he would have to serve before being paroled.

Defendant's seventeen year term of imprisonment was subject to a fourteen years and four months period of parole ineligibility under NERA. He received credit of 162 days of jail time which are counted toward the fourteen years, four months time period he must serve before being eligible for parole. See Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994) (noting, by way of example, that jail time is credited toward the time a defendant must serve before he is eligible for parole). He was also credited with 520 days of gap time. Gap time, however, reduces only the aggregate length of a sentence; it does not reduce a period of parole ineligibility under NERA. Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 429-30 (App. Div. 2001). As a result, defendant's gap time will not be credited against the fourteen years and four months period he must serve before being eligible for parole.

A close look at the record reveals that before defendant pled, he was correctly advised of his mandatory period of parole ineligibility. The written plea agreement signed by defendant expressly states that his mandatory period of parole ineligibility is fourteen years and four months. At the time of the plea, defendant acknowledged on the record in response to questioning from his attorney that he understood his sentence would be subject to NERA, requiring that he serve eighty-five percent of his sentence before being eligible for parole. He further acknowledged that this meant he would face a mandatory period of parole ineligibility of fourteen years and four months. Nothing in this record would lead a defendant to believe that he would receive credit for the gap time against his mandatory period of ineligibility for parole.

Defendant however argues in his brief that when he first pled, his attorney advised him that the gap time would reduce his sentence to fifteen years and that his minimum period of parole ineligibility would be eighty-five percent of the fifteen years. Review of the record of the first plea does not confirm this understanding. Defense counsel stated on the record at that time:

What I explained to [defendant] was that by the time he would be sentenced, which would be September 15th, since I have now provided the Court with a copy of his pre-sentence report, that [there] would be approximately fourteen months in terms of what we call gap time credits. I further explained to him that the fourteen months would then come off of the back of the seventeen year sentence which the court would impose on that date. That would effect the maximum sentence as set forth, which would reduce it, I believe down to fifteen years and ten months. Mr. Shearn understands that now that I've explained it to him. Is that correct?

Defendant: Yeah.

Counsel was clearly speaking here about the maximum sentence to be served, not the mandatory period of parole ineligibility. In the record on this first plea, defendant also acknowledged his understanding that he would be ineligible for parole for fourteen years and four months.

Defendant also argues that defense counsel failed to advise him that the State had the obligation to prove beyond a reasonable doubt the applicability of NERA. To understand this argument, some background is needed. At the time defendant committed this crime, NERA applied to "violent crimes" defined as "any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S.2C:11-1, or uses or threatens the immediate use of a deadly weapon," and certain sexual assaults. L. 1997, c. 117, 2. On February 28, 2001, prior to defendant's sentencing, the Supreme Court in State v. Johnson, held that in order to sentence a defendant under NERA, "a jury [must] determine, beyond a reasonable doubt, that a defendant committed a violent crime within the meaning of NERA before a sentencing court may impose the statute's mandatory minimum sentencing structure." State v. Johnson, 166 N.J. 523, 549 (2001). Defendant maintains that defense counsel did not advise him of this right. However, defendant was questioned about this right on the record at the time of the plea, when cross-examined by the prosecutor, as follows:

Q. Do you understand that you have the right to have the State prove to a jury beyond a reasonable doubt that the No Early Release Act applied to your case?

A. I know it applies.

Q. Okay. Well, you understand you have the right -

A. Yeah.

Q. to have me prove that to a jury?

A. Yeah.

Q. And you're waiving that right?

A. Yeah. I'm waiving it.

Further, a jury trial on the applicability of NERA was unnecessary because the factual basis for the plea, namely that defendant placed an electrical cord about the victim's neck and strangled her in an attempt to kill her, provided the requisite proof that defendant had committed a violent crime for NERA purposes. See State v. Parolin, 171 N.J. 223, 227-32 (2002) (the factual basis for the guilty plea supported the conclusion that defendant had committed a violent crime under NERA).

Defendant has failed to present a prima facie case that defense counsel was deficient. Accordingly, the trial court properly declined to conduct an evidentiary hearing and denied the PCR petition.

Affirmed.

 

The State's submission of a one sentence letter stating that it "adopts" the trial judge's opinion does not comply with the requirements of a respondent's brief or letter brief under Rules 2:6-4(a) and 2:6-2, and as a result, we consider the appeal unopposed. R. 2:6-4(b).

Gap time is awarded in accordance with N.J.S.A. 2C:44-5(b)(2).

After the decision in Johnson, NERA was amended to delete the definition of violent crimes and to specifically list the criminal offenses governed by NERA. See L. 2001, c. 129, 2.

(continued)

(continued)

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A-6616-06T4

March 23, 2009