STATE OF NEW JERSEY v. AMEER BELLINGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0943-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMEER BELLINGER,

Defendant-Appellant.

__________________________________

November 16, 2012

Submitted October 23, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0863.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Erin M. Bisirri, Special Deputy Attorney General/ Acting Deputy Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ameer Bellinger appeals from the Law Division's October 15, 2010 order that denied post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

Bellinger was the subject of an eight-count indictment relating to crimes allegedly committed in Pleasantville on December 13, 2006. Through defense counsel, a plea arrangement was negotiated, which called for Bellinger to plead guilty to a single charge of second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2). In exchange, the State agreed to recommend a seven-year term of imprisonment with forty-two months of parole ineligibility. The plea form signed by Bellinger on December 17, 2008, indicated that the sentence would run concurrent to a sentence he was already serving, and he was entitled to an unspecified "credit for all time served."

Bellinger had been initially arrested on December 13, 2006, and remained continuously incarcerated until the time of his plea allocution and sentence two years later. Most of that period of incarceration was due to Bellinger's separate sentencing on January 19, 2007, for crimes committed in Atlantic City on October 21, 2005.1

At the plea allocution in this case, defense counsel repeated what was in the plea form:

Judge, my client is to receive credit for all time served. I place[d] that on [the plea form] because there is some there may be some issue with the credit as to the two cases and I just want to make sure that it's accurate. I know that Your Honor will give him credit for all time he is entitled to with this case.

Prior to taking a factual basis for the plea, the court stated directly to Bellinger, "I'll give you credit for all lawful jail credits that you're entitled to." There were no other discussions on the record at the plea allocution hearing concerning the nature or amount of credits that Bellinger would receive at the time of sentencing. No specific promises of any kind relating to credits appear in the record. In fact, although the proper calculation of credits was an important concern to Bellinger and defense counsel, the acknowledged uncertainty as to their allocation was known to Bellinger. There is no evidence that he had any reasonable expectations other than he would receive "all lawful jail credits."

Sentencing occurred on January 21, 2009. Before imposing sentence, defense counsel, the prosecutor, and the court engaged in a colloquy regarding the amount of jail credits that would be awarded to Bellinger. The court stated, among other things, "I want to see to it that Mr. Bellinger gets everything that he's entitled to and . . . I'll certainly order whatever it is that the [presentence report] writer has told me is appropriate." The court indicated that it would award "733 gap[-]time, [and thirty-seven] days straight jail credits on this indictment to run concurrent to the sentence he's presently serving, I'm just going to reach sentencing along those lines." In response, defense counsel stated: "Judge, I understand. My position is that that's accurate."

Notwithstanding that concession, the court advised Bellinger directly that if he remained dissatisfied with the credits after consulting with the New Jersey Parole Board, he could "make application to [the court], and [it would] consider that application when [it] see[s] it." Bellinger addressed the court thereafter, stating, "I'm satisfied with this plea being on the fact that when it came down to the jail credits is the reason why I took the plea." He further told the court, "I wasn't too keen on copping out to [three]-and-a-half years. That's the reason why the jail credit's such a big issue." Thereafter, the court imposed the agreed-upon sentence, allocated the credits by giving thirty-seven days of jail credit and 733 days of gap-time credit, and advised Bellinger of his right to appeal.

Bellinger elected not to file a direct appeal. Instead, he filed a motion in the Law Division to convert the gap-time credits into jail credits, claiming that the failure to do so rendered his sentence illegal. The motion was denied on May 15, 2009. Bellinger filed a pro se appeal from that order but failed to prosecute it beyond filing the notice of appeal and a motion to proceed as an indigent.2 We dismissed the matter on October 9, 2009.

Bellinger next filed a pro se petition for post-conviction relief, which challenged the validity of his conviction on several grounds,3 including the alleged ineffectiveness of defense counsel. The pro se petition did not raise the issue of jail or gap-time credits. Notably, it was not until PCR counsel was assigned to represent Bellinger that an argument was made linking the claim of ineffective assistance of counsel to Bellinger's receipt of only thirty-seven days of jail credit. However, PCR counsel did not supplement the record with an affidavit or certification explaining the circumstances surrounding Bellinger's discussions with defense counsel at the time of the plea.

The Law Division heard oral argument and ruled that, except for the claims of ineffective assistance of counsel, Bellinger's arguments were meritless because his contentions were required to be raised in a direct appeal, which Bellinger had waived. As for the ineffective assistance of counsel contentions, the court found that Bellinger failed to satisfy either the performance or prejudice prong of the Strickland/Fritz test,4 and denied post-conviction relief. This appeal followed.5

Bellinger presents the following arguments for our consideration:

POINT I: THE COURT ERRED IN DENYING AN EVIDENTIARY HEARING, AND DENYING THE PETITION.

POINT II: DEFENDANT SHOULD BE AWARDED ADDITIONAL JAIL CREDIT.

POINT III: DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS PLEA. (NOT RAISED BELOW)

POINT IV: THE JUDGMENT OF CONVICTION IS IN ERROR. (NOT RAISED BELOW)

POINT V: DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL. (NOT RAISED BELOW).

Except for Point V, which we conclude is inappropriate for resolution in the context of this appeal, and which may be raised in a subsequent petition for post-conviction relief, all of Bellinger's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

The Strickland/Fritz paradigm first requires a demonstration that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, it must be shown 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. With respect to both factors, a defendant asserting ineffective assistance of counsel bears the burden of proving his right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009).

Regardless of whether defense counsel either misadvised Bellinger regarding jail credits or neglected to address the issue with him at all (which is unlikely in light of the discussion of credits at the plea allocution hearing), Bellinger has neither presented persuasive arguments why he would not have accepted the highly advantageous plea regardless of receiving only thirty-seven jail credits nor explained how he was prejudiced thereby.

Indubitably, a person facing a sentence with a parole disqualifier of forty-two months, as here, has an interest in receiving the greatest number of jail credits possible. See State v. Hernandez, 208 N.J. 24, 37 (2011) (recognizing the practical effect that jail credits will reduce a parole ineligibility term as well as the sentence imposed). However, Bellinger's plea arrangement already was as generous as possible because it was a negotiated Brimage6 plea. The alternative faced by Bellinger at the time was to proceed to trial and face the possibility of conviction and imposition of a sentence perhaps consecutive to the sentence he was already serving that, if an extended term were applied, could have been twenty years imprisonment with a ten-year period of parole ineligibility.7 Presently, if he sought to withdraw the plea as urged in Point III,8 he would face the same circumstances, including what the Law Division called the "very strong proofs on the State's part." We cannot conceive of a rational reason why Bellinger would have rejected the State's offer, even if he were made certain that the 733 days were not jail credits. Accordingly, he suffered no prejudice by the alleged errors of defense counsel and is not entitled to post-conviction relief.

Affirmed.

1 According to the presentence investigation report in this case, Bellinger was entitled to thirty-seven days of jail credit and 733 days of gap-time credit, which together accounted for the entire time he was incarcerated.

2 The appeal was docketed with a misspelled surname as State v. Bellenger, Docket No. A-5301-08.

3 Bellinger claimed that the State improperly seized evidence, violated his right to be free from double jeopardy, and was barred by "collateral estoppel" from pursuing the indictment.

4 We review claims of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30 (2012).

5 The notice of appeal was not filed until November 3, 2011, pursuant to our order permitting such filing as within time. Shortly after PCR was denied, Bellinger filed a pro se motion in the Law Division for discretionary jail credits pursuant to Rule 3:21-8. The motion was denied on November 29, 2010. No appeal was taken from that order.

6 State v. Brimage, 153 N.J. 1 (1998).

7 The State suggests that Bellinger was aware of an even greater exposure forty years with twenty years of parole ineligibility as reflected in the Pretrial Memorandum signed by Bellinger on July 9, 2008, shortly after he lost a motion to suppress evidence in the Law Division.

8 We note that Bellinger has never asserted that he has a colorable claim of innocence pursuant to State v. Slater, 198 N.J. 145, 157-58 (2009), and its progeny.