STATE OF NEW JERSEY v. STEVEN LAWHORN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3435-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN LAWHORN,

Defendant-Appellant.

_______________________________

May 13, 2011

Submitted May 4, 2011 - Decided

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 04-08-00585 and 05-06-00542.

Yvonne Smith Segars, Public Defender, attorney for appellant (J. Stewart Borrow, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a denial of his petition for post-conviction relief (PCR). The crux of defendant's PCR arguments relate to sentences he received on his drug-related trial convictions and three unrelated offenses. He contends primarily that his counsel was ineffective because defendant was: (1) sentenced to a three-year prison term on a fourth-degree separate violation of probation (VOP); and (2) purportedly fined $1000 on that VOP. He also argues that the judge misapplied aggravating factor eleven, and failed to dismiss an unrelated motor vehicle violation. We affirm.

After a two-day trial, a jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS), third-degree possession of CDS with intent to distribute, and third-degree distribution of CDS. Before sentencing, defendant pled guilty to three additional offenses: third-degree possession of CDS (05-06-542); a VOP on a previous conviction for fourth-degree obstruction of justice (04-08-585); and driving while on a suspended list.1

After making the appropriate mergers, the judge sentenced defendant on the trial convictions to four years in prison. Pursuant to a plea agreement, the judge imposed a three-year prison term on 05-06-542 concurrent to four years in prison on 04-08-585, consecutive to the sentences on the trial convictions. As a result, defendant received an aggregate sentence of seven years in state prison. The judge imposed the appropriate fines and penalties.

On direct appeal we affirmed his drug-related convictions but remanded for re-sentencing because the judge misapplied aggravating factor number eleven. State v. Lawhorn, No. A-4561-05 (App. Div. October 10, 2007). The Supreme Court denied defendant's petition for certification on January 24, 2008. State v. Lawhorn, 193 N.J. 587 (2008).

On June 9, 2008, defendant filed his pro se petition for PCR. Defense counsel was appointed and on November 12, 2008, he filed a supplemental brief in support of defendant's PCR petition. On March 16, 2009, the judge conducted oral argument, granted and denied in part defendant's petition, and re-sentenced defendant in accordance with our instructions. Without applying aggravating factor number eleven, the judge re-sentenced defendant to four years in prison on the trial convictions. The judge sentenced defendant to eighteen months in prison on 04-08-585, concurrent to three years on 05-06-542, consecutive to the sentence on the trial convictions. The aggregate sentence remained seven years in state prison. The judge imposed the appropriate fines and penalties. This appeal follows.

On appeal, defendant raises the following points:

POINT I

BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD REVERSE THE TRIAL COURT'S DETERMINATION TO DENY THIS PORTION OF HIS PETITION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD REMAND THE MATTER TO THE TRIAL COURT WITH DIRECTION TO GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE

POINT II

PETITIONER'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED

POINT III

PURSUANT TO STATE V. WEBSTER, THE CONTENTIONS IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF (OTHER THAN THOSE CONTENTIONS ASSERTING THAT THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE FOR BEING SENTENCED TO THREE YEARS IN PRISON FOR A FOURTH-DEGREE CRIME) ARE HEREBY INCORPORATED BY REFERENCE AS IF SET FORTH IN FULL HEREIN

In his pro se brief filed on June 9, 2008, defendant raised the following points, which we have renumbered to run consecutively to the points in the counseled brief:

POINT IV

THE DEFENDANT WAS SENTENCED TO A (3) THREE YEAR SENTENCE ON 04-08-00585-I WHICH WAS A 4TH DEGREE VIOLATION OF PROBATION THAT CARRIES A MAXIMUM OF EIGHTEEN MONTHS IMPRISONMENT

POINT V

THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS A RESULT OF APPOINTED ATTORNEYS (JEAN CHETNEY) DISPLAY OF INCOMPETENCE THAT ALLOWED THE COURT TO SENTENCE DEFENDANT OUTSIDE OF THE GUIDELINES AND APPLY A FACTOR THAT WAS NOT APPLICABLE

POINT VI

THE COURT ERRED BY INCLUDING AGGRAVATING FACTOR # (11) AND GIVING IT "GREAT WEIGHT" AND OTHER FACTORS THAT WERE NOT SUPPORTED BY THE RECORD

POINT VII

THE DEFENDANT WAS SENTENCED TO PAY A $1000.00 FINE FOR A FOURTH DEGREE CHARGE (04-08-00585-I)

POINT VIII

THE DEFENDANT SIGNED A PLEA FORM AGREEING TO DISMISS MOTOR VEHICLE VIOLATIONS BUT DID NOT HONOR THEIR END OF THE PLEA AGREEMENT

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, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed . . . , [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 affords the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland. First, defendant must show that defense counsel's performance was 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. The precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry, explaining:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

To protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. For example, a five-year time limitation is imposed by Rule 3:22-12. No PCR petition, other than to correct an illegal sentence, shall be filed more than five years after "the judgment of conviction that is being challenged." R. 3:22-12(a)(1). Although the five-year limitation is not absolute, this rule must be viewed in light of its dual purposes. State v. DiFrisco, 187 N.J. 156,166 (2006). The first purpose is to "ensure that the passage of time does not prejudice the State's retrial of a defendant[.]" Ibid. The second purpose is to respect the need for achieving finality. Id. at 167 (quoting State v. Mitchell, 126 N.J. 565, 576 (1992)). Moreover, a PCR petition is not a substitute for appeal of a conviction, Rule 3:22-3, and any available ground for relief not made in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4.

We have carefully considered the arguments made by defendant in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add the following brief comments.

Defendant argues that the outcome would be different had his counsel objected to the imposition of a three-year prison term on the VOP. His erroneous three-year sentence on 04-08-585 ran concurrently to his three-year sentence imposed under 05-06-542. Although defendant argues that he would not have entered into the plea on 04-08-585 had he known the actual maximum sentence was eighteen months rather than a possible three years, defendant knew that his exposure was eighteen months. Defendant testified at the plea hearing that:

Q. Do you understand that if you were found guilty of this fourth degree offense you'd be facing 18 months in New Jersey State Prison and a $10,000 fine?

. . . .

A. Um-hum.

Q. Are those terms acceptable to you?

A. Yeah.

Moreover, the PCR judge re-sentenced defendant on 04-08-585 to eighteen months. Thus, defendant has failed to satisfy the second prong of Strickland because he was not prejudiced.

Next, defendant argues he was sentenced to pay a $1000 Drug Enforcement/Demand Reduction (DEDR) penalty on his VOP (04-08-585). He is incorrect. Rather, defendant was charged DEDR penalties for his other drug-related offenses under the remaining indictments.

Finally, we reject defendant's contention that the State did not honor its plea agreement to dismiss his motor vehicle violations. Defendant stated at the plea hearing that he did not know his license was suspended at the time he was arrested while driving, and as a result the judge remanded defendant's driving while suspended charge -- one of his many motor vehicle charges -- to municipal court. Defendant understood that any sentence received in municipal court would not be part of his plea, and that all remaining motor vehicle charges were dismissed at sentencing.

Affirmed.

1 The judge determined that defendant's plea to driving while on a suspended list was inadequate and remanded that charge to the municipal court.