STATE OF NEW JERSEY v. JOHN SHAW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5116-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN SHAW,

Defendant-Appellant.

________________________________

November 15, 2012

 

Submitted August 13, 2012 - Decided

 

Before Judges Sapp-Peterson and St. John.

 

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-01-0008.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

 

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant appeals from the trial court order denying his petition for post-conviction relief (PCR) filed in connection with his guilty plea to second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5a(1), and third-degree possession of a controlled dangerous substance with the intent to distribute within 1000 of a school zone, N.J.S.A. 2C:35-7, for which he was sentenced to two concurrent five-year custodial sentences, with a two-year period of parole ineligibility. Defendant claims the trial court erred in denying his PCR petition without first affording an evidentiary hearing to determine whether his trial counsel was ineffective. We find no error in the denial of defendant's petition and in the court's decision to do so without first conducting an evidentiary hearing. We therefore affirm.

Defendant did not file a direct appeal of his conviction and sentence. Rather, he filed his PCR petition in which he claimed his trial counsel was ineffective because counsel failed to argue that defendant was subject to the recent amendment to Title 2C, which permits a sentencing court to "waive or reduce the minimum term of parole ineligibility" after the court considers

(a) the extent of the defendant's prior criminal record and the seriousness of the offenses for which the defendant has been convicted;

 

(b) the specific location of the present offense in relation to the school property, including distance from the school and the reasonable likelihood of exposing children to drug-related activities at that location;

 

(c) whether school was in session at the time of the offense; and

 

(d) whether children were present at or in the immediate vicinity of the location when the offense took place.

[N.J.S.A. 2C:35-7(b)(1).]

The amendment became effective January 12, 2010, and defendant entered his guilty pleas on February 8, 2010. He was sentenced on April 28, 2010. As such, defendant was subject to sentencing under the amended statute.

At sentencing, it is undisputed that trial counsel did not argue that the court should consider waiving or reducing the minimum period of parole ineligibility. Rather, defense counsel requested that the court sentence defendant in accordance with the plea agreement that called for defendant to be sentenced to concurrent five-year custodial terms, with concurrent two-year periods of parole ineligibility. In exchange for his guilty pleas, the remaining five counts of the seven-count indictment would be dismissed.

Although the PCR court did not conduct an evidentiary hearing, it did conduct oral argument. At its conclusion, in an oral opinion, Judge Jospeh A. Portelli denied the petition. The judge found that trial counsel was not ineffective, even considering his failure to seek a waiver or reduction of the minimum period of parole ineligibility, and that defendant's prior record militated against sentencing defendant under the amended statute. We agree.

A defendant claiming ineffective assistance of counsel warranting PCR must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)); see also State v. Perry, 124 N.J. 128, 153 (1991).

The offenses for which defendant pled guilty involved defendant's possession of in excess of one-half ounce of cocaine found in defendant's home, located within 1000 feet of school property. The factual basis defendant provided the court at his plea hearing demonstrated he intended to distribute the cocaine. In addition, as the sentencing court observed, the present convictions represented defendant's third drug-related conviction. On October 22, 2000, defendant was convicted of distribution of a controlled dangerous substance and distribution of a controlled dangerous substance within 1000 feet of a school zone. On December 19, 2003, defendant was found guilty of distribution of a controlled dangerous substance within 1000 feet of a school zone. Finally, on September 6, 2006, defendant was found guilty of failure to turn over a controlled dangerous substance to police.

W

e are convinced it was unlikely the sentencing court would have waived or reduced the minimum period of parole ineligibility for defendant's third drug offense and third offense occurring within 1000 feet of school property. In imposing the five-year custodial sentence on the second-degree offense, the court sentenced defendant at the lowest end of second-degree offense and, given his prior record, the imposition of the two-year period of parole ineligibility was appropriate.

Affirmed.