STATE OF NEW JERSEY v. MELVIN WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELVIN WILLIAMS,

Defendant-Appellant.

___________________________________

Submitted April 15, 2013 Decided

Before Judges Parrillo and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-12-1222.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a March 8, 2012 order denying his petition for post-conviction relief (PCR). He argues that his plea counsel was ineffective by failing to advise him regarding the duration of his parole ineligibility. We affirm.

Defendant pled guilty to third-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. As part of the plea agreement, the State recommended that defendant be sentenced to five years in prison with three years of parole ineligibility, concurrent to a parole violation. In December 2009, defendant appeared at the plea hearing and testified in pertinent part that

Q: Are you on . . . parole . . . ?

A: [Yes, p]arole.

Q: And this [1000 foot charge] is a violation of your parole as well. Are you serving a hit on [your parole violation] yet?

A: No.

Q: And you understand that this [1000 foot charge] will be concurrent [to the parole violation]?

A: Yes.

. . . .

Q: Now, sir, what controls is what you and I talked about on the record. So, if it doesn't sound right, tell me because after today, it is very difficult to get your plea back.

. . . .

[Prosecutor]: The State's recommendation is five years in . . . [p]rison with three

years parole ineligibility, concurrent to any violation of parole.

. . . .

Q: I told [you], this [1000 foot charge] will be concurrent, do you understand that?

A: Yes.

Q: I have no discretion. If I kept the plea and sentenced you, it is five and a three. Do you understand that?

A: Yes.

. . . .

Q: Has [your lawyer] gone through all your discovery with you?

A: Yes.

Q: Do you feel rushed or pressured in any way?

A: No.

The judge then obtained a factual basis, determined that defendant pled guilty voluntarily and knowingly, and then accepted the plea. In February 2010, the judge sentenced defendant in accordance with the plea agreement. Defendant did not file a direct appeal.

Defendant filed a timely petition for PCR and certified that his attorney was rushed and told defendant that he would be "sentenced to a concurrent term with [his] parole [violation] and [that he would] get out after the [twenty-four] months," the

remaining time left on his parole violation. Judge Sheila A. Venable conducted oral argument on the PCR petition. The judge then issued a thorough oral opinion denying the petition. She stated that

[t]he [c]ourt finds that in this case, . . . the State clearly stated [during the plea hearing] . . . its recommendation for sentencing was five years in . . . [p]rison, with three years of parole ineligibility . . . .

When the [c]ourt asked [defendant] if he understood, he replied affirmatively. The [j]udge [then] repeat[ed that defendant] was pleading to a five and a three, and [defendant] affirmatively stated [that] he understood. Also during sentencing[,] the State asked that the [c]ourt adopt its recommendation of five years, with three years of parole ineligibility. The [c]ourt asked [defendant] if he wished to say anything, to which he replied, no.

Based on the record, this [c]ourt is satisfied that [defendant] was not misinformed by [plea] counsel with respect to his penal consequences.

Finally, the [sentencing judge] gave [defendant] another opportunity to say something . . . . He declined to do so.

This appeal followed.

On appeal, defendant raises the following point:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS ESTABLISHED.

We find no merit to defendant's contention, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons that Judge Venable stated in her oral decision of March 8, 2012. We add the following brief comments.

A person accused of a crime is constitutionally guaranteed the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379, 380 (2012).

Defendant's argument is belied by the record, which demonstrates that he knew what the State's recommendation was and that the judge had no discretion but to impose a five-year

prison sentence with three years without parole, concurrent to the parole violation. In fact, after the assistant prosecutor requested that the sentencing judge follow the plea agreement and impose a five-year prison term with three years of parole ineligibility, the judge gave defendant an opportunity to speak, but he declined.

Given defendant's failure to set forth a prima facie case of ineffectiveness, there was no need for the trial court to have conducted a plenary hearing on the PCR petition. See State v. Preciose, 129 N.J. 451, 462-64 (1992). Oral argument on the PCR application, which had been fully briefed, was unnecessary. See State v. Mayron, 344 N.J. Super. 382, 387-88 (App. Div. 2001).

Affirmed.

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