STATE OF NEW JERSEY v. PATRICK BURNS

NOT FOR PUBLICATION WITHOUT THE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.

PATRICK BURNS,

Defendant-Appellant.

___________________________

December 6, 2013

Submitted November 19, 2013 Decided

Before Judges Reisner and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-1366.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan R. Bohrod, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Patrick Burns appeals from a January 31, 2012 order denying his petition for post-conviction relief (PCR) and denying his motion to withdraw his guilty plea. We affirm, substantially for the reasons stated in the comprehensive written opinion issued by Judge Thomas A. Brown, Jr., on January 27, 2012.

In 2007, defendant was facing scores of burglary charges in six counties. The Camden and Burlington County charges were set forth in one consolidated eighty-six count indictment filed in Camden County. That indictment was resolved by a plea agreement, in which defendant pled guilty to eighteen counts of third-degree burglary and was sentenced to twenty years in prison, half to be served without parole. Because defendant was facing sentences in other counties as well as imprisonment for a federal parole violation, his twenty-year Camden sentence was to run concurrent to "all Federal and County sentences." On July 12, 2010, we denied without prejudice defendant's motion to file a very untimely notice of appeal.

Defendant then filed a PCR petition. In the PCR brief, his counsel stated that defendant had a parole eligibility date of October 1, 2015, and a "max out date" of March 28, 2018, and had not yet been released to the federal authorities to begin serving his federal sentence. Accordingly, defendant was concerned that because he had not yet started serving his federal sentence, he would eventually serve more prison time than contemplated under the terms of his plea bargain. He asserted that his trial counsel was ineffective in failing "to take adequate steps to ensure that the agreement would be enforced as agreed to or that trial counsel did not adequately anticipate . . . that Mr. Burns would not be turned over to federal authorities" until his state sentence was completed. He asked that either defendant be "turned over to federal authorities to begin his federal sentence" immediately or that his state sentence be decreased so that defendant would not serve more prison time than the plea agreement contemplated.

In his written opinion, Judge Brown considered the PCR as a claim of ineffective assistance of counsel and as an application to withdraw defendant's guilty plea. Considering the factors set forth in State v. Slater, 198 N.J. 145 (2009), Judge Brown found no basis to allow defendant to withdraw his guilty plea. He found that defendant made no claim that he was innocent of the burglary charges. He also found that defendant's ineffective assistance claims were not supported by evidence. Considering the transcript of the plea hearing, over which he had also presided, the judge found that defendant was well aware that he might have to "serve out" his federal parole sentence.

The judge also found no basis to conclude that "whether the plea would run concurrent with the federal parole violation was truly material to Petitioner's decision to plead guilty." The judge noted that, absent a plea bargain, defendant was facing "countless" additional charges and decades of additional prison time. The judge found no basis to conclude that, had defendant known he might have to serve an additional five years in federal prison after serving his state sentence, defendant would have declined the plea offer and insisted on going to trial. See State v. DiFrisco, 137 N.J. 434, 457 (1994). The judge also noted that defendant had not presented any evidence that the federal authorities would not agree to treat his federal sentence as concurrent with his state sentence. He also found no evidence that defendant would be unable to negotiate a concurrent sentence on charges he still faced in Pennsylvania.1

On this appeal, defendant raises the following points for our consideration:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.

POINT II

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING ON WHETHER DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO TAKE ADEQUATE STEPS TO ENSURE THAT THE PLEA AGREEMENT ENTERED INTO WAS ENFORCED AS AGREED UPON AND BECAUSE COUNSEL FAILED TO ADEQUATELY ANTICIPATE THAT DEFENDANT WOULD NOT BE TURNED OVER TO FEDERAL AUTHORITIES UNTIL HIS NEW JERSEY SENTENCE WAS COMPLETE.

Having reviewed the record, we find these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As previously noted, we affirm for the reasons stated in Judge Brown's opinion. We add these comments.

On this appeal, defendant once again argues that his counsel was ineffective in not ensuring that his federal and state sentences would be concurrent. We cannot agree. The plea transcript indicates that defendant knew he might have to serve the federal sentence after the state sentence. In fact, he told the judge that he "still" had several sentences yet to be imposed in other jurisdictions. Moreover, there is no affidavit from defendant or other legally competent evidence from which a court could conclude that defendant would have rejected the plea agreement and insisted on going to trial, had he known that his federal sentence might have to be served at the conclusion of his state sentence. See DiFrisco, supra, 137 N.J. at 457; State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Nor would that appear to have been a rational choice for him, given the number of charges, and decades of additional prison time, that he faced absent a plea deal. As a result, there was no basis to hold an evidentiary hearing on his claims. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

1 The judge did award defendant gap time credits on his state sentence. That relief is not the subject of this appeal.