STATE OF NEW JERSEY v. ANTHONY BARKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5167-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY BARKER,

Defendant-Appellant.

___________________________________

April 25, 2011

Submitted February 8, 2011 - Decided

Before Judges Carchman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-09-1226.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor,attorney for respondent (Jennifer Paszkiewicz,Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Barker appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.

Barker alleged in his PCR petition that he received constitutionally ineffective assistance of counsel because his trial counsel did not move to consolidate this matter with two other criminal matters pending against him in different counties, thereby depriving him of the full benefit of jail credits and gap time. He also contends that she did not effectively advocate on his behalf with respect to the application of jail credits. We outline the procedural history in light of those contentions.

Barker was indicted in Camden County in March 2003. He was charged with three counts of robbery and two counts of conspiracy. Because he was on probation for an earlier offense, he was also charged with violation of probation.

Barker was indicted in Burlington County in September 2003. The five-count indictment alleged burglary, robbery, theft and related offenses. That is the case now before us on appeal.

On July 19, 2004, Barker appeared in Burlington County and pled guilty to one count of second-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(2). The State agreed to recommend a five-year term of incarceration, subject to a period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State further agreed to recommend that the sentence run concurrent to any sentence on the Camden County indictment, the Camden County violation of probation, and additional charges pending in Atlantic County. The remaining charges in the Burlington County indictment were to be dismissed at sentencing.

The plea judge satisfied himself that Barker's plea of guilty was knowing and voluntary, and that there was a factual basis for the plea. Defense counsel raised the issue of jail credits, but the judge said that they would be determined at sentencing. The judge accepted the plea and scheduled sentencing for September 24, 2004.

On August 2, 2004, Barker appeared in Camden County, where he pled guilty to three counts of first-degree robbery and one count of violation of probation. The State recommended an aggregate five-year sentence, subject to NERA. That sentence was to be concurrent with the Burlington and Atlantic County sentences.

After satisfying himself that Barker's plea of guilty was knowing and voluntary, and that there was a factual basis for the plea, the judge in Camden County accepted the plea and scheduled sentencing for October 1, 2004.

Barker failed to appear for sentencing as scheduled in both Burlington and Camden Counties. Bench warrants were issued for his arrest. On October 3, 2004, Barker surrendered himself in Camden County. He was sentenced in accordance with the plea agreement on October 6, 2004.

Barker appeared for sentencing in Burlington County on June 17, 2005. By that time, he had been sentenced in Camden and Atlantic Counties. Defense counsel took the position that he was entitled to 254 days of gap time credit. The judge informed Barker that he was entitled to the 254 days gap time and sixty-five days of jail credit. After Barker asked why he was not entitled to the same credits he received in Camden County, the judge explained that he was only entitled to one application of those credits. Barker was then sentenced in accordance with the plea agreement.

In November 2006, Barker filed his PCR petition, which was subsequently supplemented with the brief of assigned counsel. Barker argued that his public defender rendered constitutionally ineffective counsel by failing to move for consolidation of his pending cases, so that he could be sentenced at the same time, and that she was also ineffective because she did not arrange for a prompt rescheduling of the Burlington County sentencing once he had been sentenced in Camden County.

The petition was heard in May 2008. The PCR judge issued a written decision on June 17, 2008. He concluded that Barker's claims could have been raised on direct appeal, and were consequently barred by the provisions of Rule 3:22-4(a). He next determined that Barker was not eligible for any of the exceptions to that bar.

Turning to the merits of the claim, the judge concluded that Barker could not satisfy the second prong of the test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), because he could not demonstrate that a motion for consolidation would have been successful under his specific circumstances. He pointed to the factors that govern a motion to consolidate under Rule 3:25A-1, which are:

In deciding whether to order consolidation and, if so, the county to be the forum for the consolidated charges, the judge shall consider: (1) the nature, number, and comparative gravity of crimes committed in each of the respective counties; (2) the similarity or connection of the crimes committed including the time span within which the crimes were committed; (3) the county in which the last crime was committed; (4) the county in which the most serious crime was committed; (5) the defendant's sentencing status; (6) the rights of the victims and the impact on any victim's opportunity to be heard; and (7) any other relevant factor.

He mentioned Barker's prior record, but placed great emphasis on the fact that Barker failed to appear for sentencing in both Burlington and Camden Counties. That fact resulted in his being sentenced at very different times, rather than within the course of approximately one week, as would have been the case had he appeared for sentencing as originally scheduled. In each case, he received the benefit of a favorable plea agreement. The order dismissing the petition was filed on the same day. This appeal followed.

On appeal, Barker raises the following issues:

POINT I: THE TRIAL COURT ERRED IN FINDING THAT THE ISSUES RAISED BY DEFENDANT COULD HAVE BEEN RAISED ON DIRECT APPEAL OR BY WAY OF A MOTION TO WITHDRAW HIS GUILTY PLEA.

POINT II: 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 COUNSEL.

A. The prevailing legal principles regarding claims of ineffective assistance of counsel, evidentiary hearings and petitions for post conviction relief.

B. Trial counsel rendered ineffective legal representation by virtue of his failure to file a motion to have defendant's Burlington County and Camden County cases consolidated prior to defendant's guilty plea or prior to sentencing.

C. Defendant is entitled to a remand to the trial court to afford defendant an evidentiary hearing to determine the merits of his contention that he was denied the effective assistance of trial counsel.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Consequently, we disagree with the trial judge's conclusion that the claim was barred because it was not raised on direct appeal.

Nevertheless, merely raising such a claim does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "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 two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, id. at 52, a 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).

Even if Barker could demonstrate that his trial attorney's representation was deficient, we agree with the PCR judge's conclusion that he cannot satisfy the second prong of the Strickland test. Given his prior record, as well as the number and nature of the charges pending against him in three different counties, we cannot say that he would have been successful in moving to consolidate the indictments. Most telling, however, is the fact that Barker failed to appeal regarding the sentencing dates that had been scheduled within a one week period for his benefit. It was his conduct, rather than that of his attorney, that was primarily responsible for the order of sentencing and the delay between them. His assertion that he was somehow tricked into pleading guilty is utterly without merit.

Affirmed.