STATE OF NEW JERSEY v. ROBERT R. CHISHOLM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0531-08T40531-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT R. CHISHOLM,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 11, 2010 - Decided

Before Judges Lisa and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-01-0412.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his post-conviction relief (PCR) petition. He pled guilty to third-degree criminal restraint, N.J.S.A. 2C:13-2(a). Pursuant to a plea agreement, defendant received the recommended sentence, namely five years imprisonment, concurrent to the sentence he was then serving, with "negotiated" jail credits from the date of his arrest 157 days prior to sentencing (notwithstanding that he was serving a jail sentence on unrelated charges during that time), and dismissal of other charges arising out of the incident, including first-degree aggravated sexual assault. The PCR judge found that defendant's claims were procedurally barred and substantively lacking in merit. He also found that defendant failed to establish a prima facie case of ineffective assistance of counsel and therefore denied defendant's request for an evidentiary hearing.

Defendant argues:

POINT ONE

THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT HAVE BEEN APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

POINT TWO

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW SENTENCE HEARING AS [A] RESULT OF TRIAL COUNSEL PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE AT THE SENTENCE HEARING.

POINT THREE

THE FAILURE OF TRIAL COUNSEL TO EXPLAIN THE FULL CONSEQUENCES OF DEFENDANT'S PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE AGREEMENT, RESULTING IN MORE TIME IN PRISON THEN HE EXPECTED, DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT FOUR

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We reject these arguments and affirm.

The underlying incident occurred on November 8, 2006. The Somerdale Police were called to an apartment complex in response to a request for an ambulance and an allegation of rape. The alleged victim, Yvonne Bolton, reported that she had gone to the apartment to smoke crack cocaine with defendant. She said that while they were doing so defendant began hitting her, raped her, and refused to allow her to leave. Defendant acknowledged to the police that he and Bolton had smoked crack cocaine. He said that she brought it with her and that in the course of their activities they engaged in consensual sex. When pleading guilty, defendant acknowledged that he physically restrained Bolton from leaving. In his PCR petition, defendant stated that Bolton engaged in consensual sex with him in exchange for crack cocaine which he provided to her, during the course of their activities Bolton stole $40 from him, and that he would not allow her to leave until she returned the money.

Defendant was charged with first-degree aggravated sexual assault, third-degree possession of a weapon for an unlawful purpose, and third-degree criminal restraint. Pursuant to a plea agreement, he pled guilty to an accusation charging criminal restraint, in exchange for dismissal of the other charges and with a recommendation for the sentence we have previously described.

Defendant was sentenced on April 13, 2007. His attorney did not argue for a sentence lower than that which was recommended. At that time, although the plea agreement contained a provision that defendant waived his right to appeal, the judge explained to defendant that he had the right to appeal, and defendant acknowledged his understanding of that right. See R. 3:9-3(d) (providing that in such circumstances a defendant may appeal, in which case the prosecutor reserves the right to annul the plea agreement and have all charges restored to the same status as immediately before the entry of the plea).

Defendant did not file a direct appeal. On November 8, 2007, he filed his PCR petition, alleging that his counsel was deficient in two respects: (1) failing to advise him that because of his sex offender status he would not be eligible for minimum custody status and prison drug programs; and (2) failing to argue at sentencing for the application of certain mitigating factors to reduce the length of his sentence.

Where a defendant argues that the ineffective assistance of counsel led to the entry of a guilty plea, the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 209-10 (1985); State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986) (applying the Strickland test to guilty pleas entered in state court). Accordingly, to prevail on the ineffective assistance claim, the defendant must satisfy two prongs.

First, the defendant must show that the attorney's representation "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Specifically, the voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). Reviewing courts must indulge in a strong presumption that counsel provided reasonable assistance. Chung, supra, 210 N.J. Super. at 434 (citing Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

The defendant must also demonstrate that the attorney's deficient performance prejudicially affected the plea process. "[T]he defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Generally, prejudice is not presumed. State v. Fritz, 105 N.J. 42, 61-62 (1987).

With respect to defendant's minimum custody status and drug program arguments, his handwritten addendum to his PCR petition stated in relevant part:

I pressed [my attorney] and made him aware of my desire and "want" to take advantage of Drug Program, in whatever jail I ended up. [My attorney] assured me that I would not be stigmatized by the original Indictment because those charges would be dropped or pleaded away.

. . . I am, today not able to be admitted to the Drug Program here, because the Prison Administration, here, has classified me as a sex offender. And said sex offender classification precludes me from obtaining full Minimum Custody Status. This means not only am I procedurally barred from the Drug Program here, but I am procedurally denied Full Minimum Time Credit, that greatly reduces the real time that I must serve on said sentence. (i.e. I am consigned to getting 7 days a month off of sentence as opposed to 11 days off with Full Min. Custody status).

Thus, the only alleged erroneous advice by defendant's counsel was that he told defendant he would not be stigmatized as a result of the sexual offense originally charged, because it was being dismissed. Defendant then claims that he was classified as a sex offender, as a result of which he is not eligible for drug treatment programs or minimum custody status. However, he has presented no evidence that he ever applied for a drug treatment program and was rejected or, if so, whether the basis for the rejection was sex offender classification. And, with respect to minimum custody status, we note that defendant has an extremely extensive criminal record, dating back to 1969, including eleven indictable convictions (resulting in multiple prison sentences), eight disorderly convictions, and violations of parole and probation. Thus, any suggestion that it was the plea to this criminal restraint charge that deprived defendant of minimum custody status is at best vague and unsubstantiated.

Further, the availability of programs in prison and institutional jail credits are not penal consequences, but collateral consequences, for which a defendant is generally not entitled to receive advice as a prerequisite to the entry of a knowing and voluntary guilty plea. See State v. Heitzman, 107 N.J. 603, 604 (1987). Although in recent years, our Supreme Court has departed from the penal-collateral consequences dichotomy in this context, it has done so only where the potential collateral consequences are extreme, thus warranting invocation of the fundamental fairness doctrine. See State v. Nunez-Valdez, 200 N.J. 129, 137-38 (2009) (dealing with immigration consequences); State v. Bellamy, 178 N.J. 127, 138 (2003) (dealing with eligibility for civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38). In those cases, the defendants were faced with the prospect of deportation or indefinite civil commitment after completion of the criminal sentence, which could well last longer than the criminal sentence itself. No such drastic consequences are implicated here. At best, based upon defendant's contention, he is losing four days per month of institutional jail credits by not qualifying for minimum custody status. Even if defendant's bald assertions, see State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (stating that a PCR petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and that more than "bald assertions" are necessary to establish a prima facie claim), that he was somehow misled by his attorney and that his ineligibility for drug programs and minimum custody status indeed resulted from this conviction, these consequences are relatively minor. Defendant failed to present sufficient evidence as to either prong as to this argument.

With respect to the sentencing argument, we agree with the PCR judge that it was procedurally barred. Defendant's argument that certain mitigating factors should have been considered and would have reduced his sentence is an argument that could have been made on direct appeal. Nevertheless, as we stated, the PCR judge proceeded to consider the argument on the merits and rejected it substantively. The judge concluded that one of the mitigating factors urged by defendant, that the victim of his conduct induced or facilitated its commission, N.J.S.A. 2C:44-1b(5), might have been applicable. However, the judge further concluded that in light of the very substantial weight attributed to the aggravating factors, they would have continued to outweigh that mitigating factor, as a result of which the sentence would not have been reduced from the five years that was recommended in the plea agreement.

We agree with that conclusion. Indeed, considering defendant's extensive prior record, which made him eligible for an extended term sentence, the five year sentence he received was more than reasonable and plainly not excessive. Thus, even if defendant's attorney was deficient for not urging mitigating factors and arguing for a lower sentence, the second Strickland prong was not satisfied, because the result would not have changed.

 
Affirmed.

(continued)

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A-0531-08T4

February 5, 2010