STATE OF NEW JERSEY v. JEROME SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3508-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME SMITH,

Defendant-Appellant.

_______________________________

December 18, 2012

Submitted December 4, 2012 - Decided

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-03-0276.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor,attorney forrespondent (JenniferB. Paszkiewicz,Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jerome Smith appeals from the March 8, 2011 order denying his petition for post-conviction relief (PCR). Defendant had entered a guilty plea based on an agreement he plead to third-degree theft by deception, N.J.S.A. 2C:20-4a and the State agreed to dismiss the remaining charges. The trial judge stated her intention to impose a one-year probationary sentence conditioned on defendant serving 180 days in the county jail, at which time probation would end and defendant would pay restitution. See R. 3:9-3(c) ("The court may . . . indicate the maximum sentence it would impose in the event the defendant enters a plea of guilty[.]"). Further, the judge noted this sentence would run consecutively to a sentence defendant was serving in Pennsylvania. At sentencing, the court imposed this sentence along with applicable penalties and assessments.

On appeal, defendant argues:

THE FAILURE OF TRIAL COUNSEL TO ACCEPT A PLEA BARGAIN THAT DID NOT CALL FOR CONCURRENT SENTENCES OR THE AWARD OF DISCRETIONARY CREDITS AND THE FAILURE TO EXPLAIN THE TERMS OF THE PLEA BARGAIN TO PETITIONER, RESULTED IN A COERCED PLEA OF GUILTY. AS SUCH, A HEARING IS REQUIRED TO DETERMINE WHY PETITIONER ASSERTS THAT HE WAS LEAD TO BELIEVE BY TRIAL COUNSEL THAT HIS NEW JERSEY SENTENCE WOULD RUN CONCURRENT TO HIS PENNSYLVANIA SENTENCE AND THAT HE WOULD RECEIVE STRAIGHT JAIL CREDITS FOR THE TIME HE SPENT IN CUSTODY IN NEW JERSEY, DESPITE WHAT APPEARS IN THE RECORD. THIS DISPARITY CONSTITUTES A VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm substantially for the reasons set forth in the oral opinion of Judge Jeanne Covert.

At the time of the November 16, 2009 plea hearing, defendant was serving a sentence for a Pennsylvania conviction and had been incarcerated at the State Correctional Institution at Greenberg. He was transferred to Burlington County following his request to resolve the charges in New Jersey, pursuant to the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15.

When the hearing commenced, the prosecutor recited the terms of the proposed plea as they appeared on question thirteen of the plea form executed by defendant. The prosecutor explained upon conviction following defendant's guilty plea a probationary sentence conditioned on 180 days in the county jail would be imposed. Defendant was to make full restitution in the amount of the forged check; and finally, the sentence imposed "would also run consecutive to any sentence [defendant was] presently serving."

Defendant, through counsel, acknowledged he accepted the terms as stated and also requested to be sentenced in abstentia so he could be returned expeditiously to Pennsylvania. Thereafter, defendant was questioned by Judge Covert. He stated that he attended four years of college and had no difficulty reading, writing, or understanding English. He responded negatively to Judge Covert's questions regarding whether he suffered from any mental disabilities, was under the influence of drugs or alcohol, or impaired by other substances affecting his ability to make a decision in his best interest. The judge outlined the maximum sentence were defendant convicted following trial, taking note defendant was extended term eligible. Continuing the colloquy with defendant the judge said:

THE COURT: Now[,] because you're pleading guilty, the State has agreed -- well, actually it was a nonnegotiated plea which means I got involved and --

THE DEFENDANT: Okay.

THE COURT: -- and what I said was you would receive probation conditioned upon serving 180 days in the Burlington County Jail and that the probation would terminate upon the completion of your jail sentence. This, however, runs consecutive which means in addition to any sentence presently being served by you and that's in Pennsylvania as I understand it.

THE DEFENDANT: Yes.

Thereafter, defendant stated he had reviewed the discovery and the plea with counsel, who had answered all of his questions, and whose representation he described as "great." Defendant reviewed each question on the plea form and the responses he provided after review with counsel, noting all answers were true. Defendant also identified his initials on each page of the agreement and his signature appearing at the end of the agreement as well as on the supplemental agreement. He stated he was not forced or promised something to induce his guilty plea and was doing so voluntarily. Defendant waived his rights to a jury trial, to call and cross-examine witnesses, and admitted he understood the State held the burden of proof at trial. Defendant repeated he had had sufficient time to think about his decision, consult with counsel, and had no questions for counsel, the prosecutor or the judge. Defendant affirmed he was pleading guilty because he was guilty of the offense and provided a factual basis to support his plea. The judge accepted the plea and advised defendant of all appellate rights.

Defendant did not appear at the January 22, 2010 sentencing hearing, but was sentenced in abstentia as he requested. Judge Covert imposed the sentence as previously set forth on the plea form. No direct appeal was filed.

Defendant filed for PCR maintaining counsel had assured him his sentence would be concurrent to his Pennsylvania sentence, which induced him to enter the plea, and that he was entitled to 89 days jail credit. Judge Covert reviewed the matter and denied the petition, concluding that even if counsel had initially made assurances regarding the sentence, the plea agreement and hearing made clear to defendant that the New Jersey sentence was to be served consecutive to the sentence being served in Pennsylvania. The judge granted defendant's request for five days credit representing the period beginning with the completion of his Pennsylvania sentence until he was transported to the Burlington County Jail to begin the New Jersey sentence. The judge denied credit against the New Jersey sentence for the time spent in the county jail pending conviction in New Jersey because the credits were applied to reduce defendant's Pennsylvania sentence.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). 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 v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as applied by State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong of the Strickland test, a "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. 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.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "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). More specifically, to demonstrate counsel's performance was deficient under the first prong of Strickland, 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, ibid., 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).

In the context of a request to vacate a guilty plea, a defendant must show counsel's acts or omissions created "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

In this matter, defendant presents no facts to support either prong of the Strickland/Fritz test. His assertion that he was misled is belied by the record. Further, a contention counsel was ineffective for not rejecting any plea that included a consecutive sentence is unfounded.

Here, defendant faced up to ten years in State prison if convicted at trial of all charges. The plea resulted from a judicial sentencing recommendation, made and confirmed to be in the "interests of justice" after reviewing the pre-sentence investigation report. R. 3:9-3(c).

The record unequivocally establishes defendant, an educated individual, understood the terms and conditions were he to enter a plea or choose to go to trial. No facts show he was duped, misled, coerced, or tricked. Not only had defendant read, understood and accepted the succinct sentencing terms, which recited the imposed sentence would be consecutive, but also this provision was reinforced at the plea hearing by counsel and the court, who articulated the terms of sentence if a guilty plea were accepted. Defendant stated his counsel "was great" and he had no questions regarding the terms of the agreement or consequences of the plea. See State v. Warren, 115 N.J. 433, 444 (1989) (discussing that a plea must be knowing and voluntary when entered). Judge Covert thoroughly and patiently conducted the plea hearing, assuring defendant knowingly and voluntarily entered his plea. See R. 3:9-2 (stating guilty plea requirements). Accordingly, we determine no basis to conclude counsel was ineffective or that defendant suffered any prejudice by claimed errors, which possibly would have altered the result. State v. Bey, 161 N.J. 233, 252 (1999).

We turn to defendant's claim for jail credits for pre-sentence custody time spent incarcerated in New Jersey prior to entry of his guilty plea. Rule 3:21-8 provides a "defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of sentence."

In this case, defendant's pre-sentence confinement in Burlington County was attributable not to the New Jersey offense, but to the fact that, under N.J.S.A. 2A:159A-5(f) of the Interstate Agreement on Detainers, he was required to continue his term of incarceration under the Pennsylvania sentence, against which the time was credited. Under that circumstance, New Jersey jail credit does not apply. State v. Carreker, 172 N.J. 100, 115 (2002). The determination under these circumstances remains unaffected by the Supreme Court's recent holding in State v. Hernandez, 208 N.J. 24, 44 n. 16 (2011) (stating the Court adheres to Carreker's holding because its holding was based on distinguishable facts). Also, gap time credits, see N.J.S.A. 2C:44-5, are unavailable to a defendant serving an out-of-state sentence. Carreker, supra, 172 N.J. at 111. Here, no error occurred as defendant's entire period of confinement in Burlington County was counted against his Pennsylvania sentence.