STATE OF NEW JERSEY v. BILLY DAY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5200-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BILLY DAY,
Defendant-Appellant.
_______________________________________________
Submitted July 15, 2009 - Decided June 22, 2010
Before Judges R. B. Coleman and Graves.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Accusation No. 06-06-1151.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Kisha M. Hebbon,
Designated Counsel, on the brief).
Luis A. Valentin, Monmouth County
for respondent
Prosecutor, attorney
(Patricia B. Quelch, Assistant Prosecutor,
of counsel and on the brief).
The opinion of the court was delivered by
R. B. COLEMAN, J.A.D.
Defendant Billy Day appeals from a March 5, 2008 amended
order of the Law Division denying his petition for post-
conviction relief (PCR). Defendant argues that the petition
should not have been denied without an evidentiary hearing on
his claim that trial counsel provided ineffective assistance of
counsel. It is clear to us that defendant failed to make a
prima facie showing of ineffective assistance of counsel, and
for that reason, no evidentiary hearing was required.
Accordingly, we affirm.
On June 2, 2006, defendant waived indictment and was
charged under Monmouth County Accusation No. 06-06-1151 with the
following six offenses: third-degree possession of a controlled
dangerous substance (CDS), heroin, contrary to N.J.S.A. 2C:35-
10(a) (count one); third-degree possession of CDS, heroin, with
the intent to distribute contrary to N.J.S.A. 2C:35-5(b)(3)
(count two); third-degree possession of CDS, heroin, on or
within 1,000 feet of school property with intent to distribute
contrary to N.J.S.A. 2C:35-7 (count three); third-degree
possession of CDS, cocaine, contrary to N.J.S.A. 2C:35-10(a)
(count four); second-degree possession of CDS, cocaine, with
intent to distribute contrary to N.J.S.A. 2C:35-5(b)(2) (count
five); and, third-degree possession of CDS, cocaine, on or
within 1,000 feet of school property with intent to distribute
contrary to N.J.S.A. 2C:35-7 (count six). On that same date,
defendant entered a plea of guilty to count six of that
Accusation, third-degree possession of CDS, cocaine, on or
within 1,000 feet of school property with intent to distribute.
A-5200-07T4
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In addition, defendant pled guilty to count one of Monmouth
County Indictment No. 06-04-0668, third-degree conspiracy to
possess CDS, and count two of Monmouth County Accusation No.
06-06-1150, third-degree possession of CDS, heroin, on or within
1,000 feet of school property with intent to distribute. In
exchange for defendant's guilty pleas, the State agreed to
recommend the dismissal of all other charges on the two
accusations and the indictment and to recommend on count six of
Accusation No. 06-06-1151 an extended-term sentence of eight
years with forty-six months of parole ineligibility to run
concurrently with the recommended sentences to be imposed on
defendant for count two of Accusation No. 06-06-1150 (five years
with a three-year period of parole ineligibility), and for count
one of Indictment No. 06-04-0668 (four years).
During the plea hearing, the judge explained to defendant
that he was eligible for an extended term sentence pursuant to
N.J.S.A. 2C:43-6(f) because of a prior drug-related conviction.
Additionally, the judge told defendant that because he was
pleading guilty to third-degree violations of N.J.S.A. 2C:35-7,
the plea agreement included a mandatory extended term. The
judge further asked defendant whether he understood that the
plea agreement was subject to the Brimage Guidelines, N.J.S.A.
A-5200-07T4
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2C:35-12.1 Defendant answered "Yes, ma'am." The applicability
of the Brimage Guidelines was also noted in paragraph 20 on the
As a consequence of the Brimage Guidelines, the
plea form.
judge told defendant she lacked discretion to impose a sentence
lower than the negotiated term. Defendant also acknowledged
that he understood the court could impose consecutive terms, but
that if the court decided to do that he could "ask to take the
plea back" because his plea offer was for effectively eight
years imprisonment with forty-six months of parole
ineligibility.
Based upon further inquiry, the judge found that
defendant's guilty plea was knowingly entered, and that the
factual basis for each of the guilty pleas was adequate. She
also reminded defendant that "today is your day in court, [and]
. . . if you decide to change your mind in three weeks or a
month, . . . I'm not likely to give your plea back[.]" Despite
1
In State v. Brimage,
153 N.J. 1, 17 (1998), the Court held that
the original guidelines promulgated by the Attorney General in
September 1992 failed to promote uniformity in plea agreement
policies. "The Court thus decreed that new guidelines had to be
promulgated - ones that specified permissible ranges of plea
offers for particular crimes and explicitly defined permissible
bases for upward and downward departures." State v. Thomas,
392 N.J. Super. 169, 178 (App. Div.) (citing Brimage, supra,
153 N.J. at 24-25), certif. denied,
192 N.J. 597 (2007). The newly
issued guidelines incorporated "by reference Attorney General
guidelines for Negotiating Cases under N.J.S.A. 2C:35-12. These
are referred to as the Brimage Guidelines . . . and are
applicable to defendant's sentence." Ibid.
A-5200-07T4
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that reminder, defendant indicated he still wished to plead
guilty to those three counts. Accordingly, his plea was
accepted.
At sentencing on January 26, 2007, defense counsel argued
that defendant was a "changed man," who had improved his life in
light of a recent surgery to remove bullets from his leg and the
birth of his fourth child. Defense counsel asked the court to
change the negotiated plea so that defendant would not be
exposed to the full length of the agreed-upon sentence. The
judge explained once again that she lacked discretion to deviate
from the plea agreement recommended under the Brimage
Guidelines.
When the judge placed defendant under oath to clarify
statements appearing in the pre-sentence investigation report,
defendant told the court that he had not told the truth at the
plea hearing when he said he was not then under the influence of
drugs. As counsel further explained, defendant was at the time
under the influence because "it was a result of his drug use and
drug involvement that he committed the offenses that he
committed." Defendant then stated that he wanted the
recommended sentence, but with a lower period of parole
ineligibility. The judge again explained that the Brimage
Guidelines left no discretion to the court to reduce the parole
A-5200-07T4
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ineligibility period stipulated in the plea agreement. After
conferring with his attorney, defendant confirmed that his
statements during his plea hearing had been true, and that his
statements in the pre-sentence report were not accurate.
Defendant also confirmed that he understood the judge could not
offer him a sentence lower than eight years with forty-six
months of parole ineligibility, and asked the judge to impose
the sentence in accordance with the plea agreement.
No appeal was taken from the judgment of conviction;
however, on June 26, 2007, six months after sentencing,
defendant filed a pro se petition for PCR. At the hearing on
February 15, 2008, PCR counsel argued that trial counsel did not
adequately explain the parameters of the extended term sentence
under the Brimage Guidelines to defendant, that defendant would
not have accepted the plea if he understood that the judge had
no discretion to lower his sentence, and that trial counsel
should have raised mitigating factors pursuant to N.J.S.A.
2C:44-1(b)(10), (11). PCR counsel then requested an evidentiary
hearing on the issue of ineffective assistance of counsel.
The judge first noted that even if defense counsel argued
"all of the mitigating factors in the world," she still would
have been powerless to change the offer under N.J.S.A. 2C:35-12.
A-5200-07T4
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In rejecting defendant's PCR petition, the judge then stated the
following:
I'm denying an evidentiary hearing and
I'm denying [PCR] finding that Mr. Day was
well aware of what the sentence was, that
[defense counsel] was not ineffective, that
the only confusion that existed in the
morning to the afternoon was with the
prosecutor, that we went over and over what
the effect of the sentence was and that I
couldn't change it.
And again, at the time of sentencing
Mr. Day was given the opportunity to
withdraw if he wanted to and he indicated
that he would not because he knew what he
was facing if he didn't take the eight with
the [forty-six]. That there was no question
that he had the prior conviction, that he
admitted to it, that counsel indicated that
it was mandatory and . . . we said [that]
several times to Mr. Day.
Post-conviction relief is a safeguard to prevent the unjust
conviction of defendants, State v. McQuaid,
147 N.J. 464, 482
(1997), however, it is not a substitute for an appeal. State v.
Afanador,
151 N.J. 41, 51 (1997). Here, defendant's principal
contention is that the trial court erred by denying him an
evidentiary hearing on his ineffective assistance of counsel
claim. Although it has been recognized that claims of
ineffective assistance of counsel on petition for PCR are "more
likely to require an evidentiary hearing" than other post-
conviction claims "because the facts often lie outside the trial
record and because the attorney's testimony may be required[,]"
A-5200-07T4
7 Rule 3:22-1 does not require evidentiary hearings to be held on
post-conviction relief petitions. State v. Preciose, 129 N.J.
3:22-10 recognizes judicial
451, 462 (1992). However, Rule
discretion to conduct such hearings. Ibid.
The general approach articulated by the court is as
follows:
[T]rial courts ordinarily should grant
evidentiary hearings to resolve ineffective-
assistance-of-counsel claims if a defendant
has presented a prima facie claim in support
of post-conviction relief. As in a summary
judgment motion, courts should view the
facts in the light most favorable to a
defendant to determine whether a defendant
has established a prima facie claim.
[Id. at 462-63.]
In order to establish a prima facie case of ineffective
assistance of counsel, "defendant must show that '[defense]
counsel's performance was deficient,' and that there exists 'a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
State v. Nunez-Valdez,
200 N.J. 129, 138-39 (2009)
different.'"
(quoting Preciose, supra,
129 N.J. at 463-64 (quoting Strickland
v. Washington,
466 U.S. 668, 694,
104 S. Ct. 2052, 2069,
80 L. Ed. 2d 674, 698 (1984))). See also State v. Fritz,
105 N.J. 42,
58 (1987) (adopting the Strickland two-part test). Adequate
assistance of counsel should be measured by a standard of
A-5200-07T4
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"reasonable competence." Fritz, supra,
105 N.J. at 60. That
standard does not require "the best of attorneys," but rather
requires that attorneys be "not . . . so ineffective as to make
the idea of a fair trial meaningless." State v. Davis,
116 N.J.
341, 351 (1989), superseded by statute on other grounds as
recognized by State v. Cruz,
163 N.J. 403, 411 (2000).
Moreover, "the defendant must overcome a 'strong
presumption' that counsel exercised 'reasonable professional'
judgment and 'sound trial strategy' in fulfilling his
State v. Loftin,
191 N.J. 172, 198 (2007).
responsibilities."
Strategic decisions of trial counsel made after a thorough
investigation are "virtually unchallengeable." Strickland,
supra,
466 U.S. at 690,
104 S. Ct. at 2066,
80 L. Ed. 2d at 695;
see also State v. Martini,
160 N.J. 248, 266 (1999); State v.
Savage,
120 N.J. 594, 617-18 (1990).
In the context of reviewing the adequacy of counsel's
performance relating to a defendant's entry of a guilty plea,
the Court has said:
When a guilty plea is part of the
equation, we have explained that "[t]o set
aside a guilty plea based on ineffective
assistance of counsel, a defendant must show
that (i) counsel's assistance was not within
the range of competence demanded of
attorneys in criminal cases; and (ii) that
there is a reasonable probability that, but
for counsel's errors, [the defendant] would
A-5200-07T4
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not have pled guilty and would have insisted
on going to trial."
[Nunez-Valdez, supra,
200 N.J. at 139
(quoting State v. DiFrisco,
137 N.J. 434,
457 (1994) (internal quotations omitted)].
With these standards in mind, we are convinced that defense
counsel's performance was not deficient for allowing defendant
to plead guilty to third-degree possession of CDS on or within
1,000 feet of a school zone with an intent to distribute, or for
not counseling defendant to reject a plea-bargained sentence of
eight years imprisonment with forty-six months of parole
ineligibility. Defendant had a prior record of drug-related
convictions and was therefore subject to extended term
sentencing. By accepting a plea agreement that contemplated
concurrent terms for three convictions, defendant was able to
avoid the risk that he might be sentenced to consecutive
extended terms of incarceration. See, e.g., N.J.S.A. 2C:44-
5(a)(2) (directing that when multiple sentences are imposed for
more than one offense, "[n]ot more than one sentence for an
State v.
extended term shall be imposed."). See also
Pennington,
154 N.J. 344, 360-61 (1998). Strategic decisions
are unassailable on PCR review.
Defendant also argues that defense counsel's failure to
urge mitigating factors ten and eleven, N.J.S.A. 2C:44-1(b)(10),
(11), and to explain the parameters of the extended term
A-5200-07T4
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sentence under the Brimage Guidelines, amounted to ineffective
assistance of counsel.
First, assuming those mitigating factors were applicable,
we are convinced the failure to raise them did not prejudice
2C:35-12
defendant. In that regard, we note that N.J.S.A.
"expressly states that the sentencing court shall not impose a
lesser term of imprisonment or parole ineligibility than that
provided under the terms of the plea agreement." Thomas, supra,
392 N.J. Super. at 180. See also State v. Smith,
372 N.J.
Super. 539, 542 (App. Div. 2004) (finding "N.J.S.A. 2C:35-12
requires that 'the negotiated plea' be imposed for the mandatory
sentences otherwise applicable for the school zone violations"
of N.J.S.A. 2C:35-7), certif. denied,
182 N.J. 428 (2005).
"Once a court accepts a negotiated guilty plea, . . . it is
'bound by the specific terms and conditions of that negotiated
agreement' for the purpose of imposing sentence." State v.
Bridges,
131 N.J. 402, 409, (1993). Further, it has been noted
that, "[a]llowing a court to sentence below the term agreed upon
undermines the clear legislative purpose of encouraging
defendants to cooperate with law enforcement authorities by
insuring that both the State and the defendant receive the full
benefit of their negotiated agreement." Thomas, supra,
392 N.J.
Super. at 181.
A-5200-07T4
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Moreover, and even assuming defendant's attorney did not
adequately explain the effect of the Brimage Guidelines to
defendant, the judge told defendant before defendant's plea was
accepted that the court has no discretion in regard to the
Brimage counts. At another point, the court reminded defendant
"if you decide to change your mind in three weeks, I'm not
likely to give your plea back, do you understand that?"
Defendant responded that he understood. Defendant told the
judge at the plea hearing that he understood the nature of the
plea agreement, that the judge had no discretion to change it,
that his attorney had discussed the plea with him, and that he
had no questions with regard to his plea.
Also, at sentencing, defendant agreed with his attorney's
statements that he had "explained to Mr. Day that the court
[had] no discretion because of the Brimage law with either
number. The stip or the maximum sentence. And that what was
negotiated the court is bound by[.]" Thus, it is clear from the
record that defense counsel explained the nature of the plea and
the effect of the Brimage Guidelines.
We also reject defendant's argument that his attorney was
ineffective for not arguing for mitigating factors ten and
eleven. Those mitigating factors were not applicable. The
sentencing judge expansively stated that arguing "all of the
A-5200-07T4
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mitigating factors in the world" would not have allowed her to
impose a lesser sentence than that stipulated in the plea
agreement. Even though defense counsel knew the court lacked
discretion to impose a lower sentence or a shorter period of
parole ineligibility, he nonetheless brought to the court's
attention that defendant was a "changed man" in light of recent
surgery and the birth of his fourth child, and he requested that
defendant not "be exposed to the full length of the recommended
plea." The judge acknowledged defense counsel's statements, but
again reiterated that the court had no discretion to depart
downwardly from the negotiated plea.
Simply put, defense counsel's performance was not
inadequate for failing to argue mitigating factors that would
have had no effect on defendant's sentence. The negotiated
sentence comports with the provisions of both N.J.S.A. 2C:43-
2C:35-12, and is less than the statutory
6(f) and N.J.S.A.
maximum.
Finally, even if defense counsel committed errors, we could
not reasonably find that there was a reasonable probability
defendant would not have pled guilty or that he would have
insisted on going to trial. Nunez-Valdez, supra,
200 N.J. at
139. Defendant represented to the court at the sentencing
hearing that he understood the nature of the plea agreement and
A-5200-07T4
13
the court's lack of discretion to impose a lower sentence. In
the end, defendant acknowledged that his decision to plead
guilty was "based on what would happen if I didn't." In other
words, his acceptance of the plea was the best way to avoid the
harsher sentencing consequences if he went to trial and was
found guilty. Cf. State v. Taccetta,
200 N.J. 183, 193-94
(2009). Defendant indicated that he had time to discuss his
plea with his attorney, was satisfied with his attorney's
representation, and believed the plea was in his best interest.
Based on our review of the record, we find no evidence that
defense counsel failed to meet the standard of reasonable
competence. Defendant has failed to make a prima facie showing
Preciose, supra, 129
that an evidentiary hearing was warranted.
N.J. at 462-63.
Affirmed.
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