STATE OF NEW JERSEY v. DANA JAMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3965-08T43965-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

DANA JAMES,

Defendant-Appellant.

__________________________________

 

Submitted: March 17, 2010 - Decided:

Before Judges Cuff and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 01-10-2003, 01-11-2162.

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

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

PER CURIAM

Defendant Dana James appeals from the denial of his petition for post-conviction relief (PCR). Defendant pled guilty to carjacking, N.J.S.A. 2C:15-2a(2), and is serving an eighteen-year term of imprisonment subject to a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole ineligibility term of 15.3 years. He is also serving a concurrent fifteen-year prison term subject to a five-year parole ineligibility term following a guilty plea to one count of first degree distribution of a controlled dangerous substance (CDS), and a concurrent eight-year prison term on one count of second degree distribution of CDS.

Defendant's PCR petition is grounded on two principal arguments. First, he argues that he was misinformed about the length of the parole ineligibility term. Second, he insists that he was never informed that he is subject to a five-year period of parole supervision following completion of his base term. Defendant also argues that PCR counsel failed to argue all of the points listed by him as "possible" issues in his pro se petition. Judge Connor dismissed the petition. We affirm.

On appeal, defendant presents the following arguments:

POINT I:

THIS MATTER SHOULD BE REMANDED TO THE TRIAL COURT BECAUSE DEFENDANT'S COUNSEL FAILED TO RAISE ISSUES CONTAINED IN DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND THEREBY VIOLATED STATE V. RUE AND STATE V. WEBSTER. (NOT RAISED BELOW).

POINT II:

THE TRIAL COURT SHOULD HAVE GIVEN DEFENDANT A MATERIALITY HEARING TO DETERMINE WHETHER HIS PLEA WAS ENTERED WITH FULL KNOWLEDGE THAT HE WOULD BE SUBJECT TO PAROLE SUPERVISION FOR FIVE YEARS AFTER HIS RELEASE FROM PRISON.

POINT III:

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN HE ENTERED HIS PLEA IN THIS MATTER BECAUSE HE WAS NOT ADVISED THAT HE WOULD HAVE A FIVE YEAR PERIOD OF PAROLE SUPERVISION AFTER HE COMPLETED HIS SENTENCE NOR WAS HE TOLD THAT HIS PAROLE INELIGIBILITY PERIOD WAS 15.3 YEARS.

POINT IV:

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BECAUSE HE FAILED TO RAISE IN DEFENDANT'S DIRECT APPEAL DEFENDANT'S LACK OF KNOWLEDGE AS TO THE FIVE YEAR PERIOD OF PAROLE SUPERVISION AFTER RELEASE AND THAT HE WOULD HAVE TO SERVE A MINIMUM OF 15.3 YEARS BEFORE BECOMING ELIGIBLE FOR PAROLE.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel.

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. State v. Preciose, 129 N.J. 451, 463 (1992). First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. 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.

Defendant claims that his guilty plea cannot be considered a voluntary and knowing plea because his attorney misinformed him of critical information or omitted critical information about the penal consequences of his plea. 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 v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 205, 208 (quoting McMann, supra, 397 U.S. at 771, 90 S. Ct. at 1449, 25 L. Ed. 2d at 773). Reviewing courts must indulge in a strong presumption that counsel provided reasonable assistance. State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986) (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. Hill, supra, 474 U.S. at 58-59, 106 S. Ct. 370, 88 L. Ed. 2d at 209-10. "[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." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Prejudice is not presumed. State v. Fritz, 105 N.J. 42, 61-62 (1987).

Here, the transcript of the November 13, 2002 guilty plea provides that the parole ineligibility term on the carjacking count would be ten years. Judge Connor, the prosecutor and defendant's PCR attorney, however, obtained and listened to the tape recording of the plea proceeding. All heard the judge state that the parole ineligibility term was fifteen not ten years. Furthermore, the plea forms executed by defendant clearly state that he will be subject to five years parole supervision following the completion of his prison term. There is simply no factual basis for defendant's contention that he was misinformed of the parole ineligibility term or the parole supervision term.

Defendant also argues that the judge misstated the duration of the parole ineligibility term when he stated fifteen years rather than 15.3 years. Although the judge informed defendant that the parole ineligibility term was fifteen years, the plea forms executed by defendant state 15.3 years, and defendant has failed to demonstrate that he would have rejected this plea agreement if he had known of the additional prison time.

Finally, defendant argues that PCR counsel failed to provide the representation required by State v. Rue, 175 N.J. 1 (2002) and State v. Webster, 187 N.J. 254 (2006). He grounds this argument on the failure of counsel to argue points he listed in his pro se PCR petition as possible issues. We note that appellate counsel raised several of his "possible issues" on direct appeal, including the circumstances surrounding his plea and the excessive nature of his sentence. Therefore, these issues may not be raised again. R. 3:22-5.

Furthermore, we discern no violation of the standard articulated in Webster and Rue. In Webster, supra, the Court clarified PCR counsel's obligation to present arguments on behalf of a defendant; the Court said:

Reduced to its essence, Rue provides that PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. That procedure, which will serve to preserve defendant's contentions for federal exhaustion purposes, is all that is required.

[187 N.J. at 257.]

Our review of the record demonstrates to us that the issues defendant wished to present to the court were presented on direct appeal or in the brief filed by PCR assigned counsel.

We, therefore, affirm the June 13, 2008 order denying defendant's PCR petition.

Affirmed.

 

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A-3965-08T4

March 31, 2010