STATE OF NEW JERSEY v. ALMUSTAFA BALDWIN

NOT FOR PUBLICATION WITHOUT THE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.

ALMUSTAFA BALDWIN,

Defendant-Appellant.
_________________________________

October 31, 2013

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-06-0834.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Almustafa Baldwin appeals from the March 19, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Defendant was charged in a twelve-count Middlesex County indictment with five counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one, two, six, seven, and eight); five counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts three, four, nine, ten, and eleven); and two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts five and twelve). On May 23, 2005, defendant pled guilty to two counts of first-degree robbery (counts one and six). Pursuant to the negotiated plea agreement, the State recommended an eighteen-year sentence, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The sentences would run concurrent to each other and to the sentences defendant was already serving in Essex, Bergen, and Union Counties on other charges, and to the sentences he faced in Somerset County on numerous other matters.1

On February 17, 2006, the trial judge sentenced defendant to an aggregate eighteen-year term on counts one and six, subject to NERA, with a five-year period of parole supervision. The sentence was concurrent to the sentences that had already been imposed in the other counties, with the further understanding that the sentence to be imposed in Somerset County would run concurrent to the Middlesex County sentence.2 The remaining Middlesex County charges were dismissed.

Defendant did not file a direct appeal from his conviction and sentence. However, he subsequently filed a PCR petition contending, among other things,3 that his counsel was ineffective because he did not advise him that he would be required to serve a five-year period of parole supervision after the completion of his custodial sentence. In addition, he pointed out that the trial judge did not mention the parole requirement at the time of the plea.

In a thorough March 1, 2012 oral opinion, Judge Rockoff denied the petition, concluding that defendant failed to satisfy the second prong of the Strickland test. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). The judge found that defendant was aware at the time of sentencing that he would have a five-year period of parole supervision after completing his custodial term. Moreover, even assuming that defendant satisfied the first prong of the Strickland test, the judge concluded that defendant had suffered no prejudice from the alleged error. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE PCR COURT ABUSED ITS DISCRETION IN CONCLUDING THAT DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WERE MERITLESS WITHOUT PROVIDING DEFENDANT WITH AN EVIDENTIARY HEARING IN THIS MATTER.

A. The Standard for Ineffective Assistance of Counsel Applies to Pleas as Well as Trials.

B. Defendant Was Not Informed About The Five Year Period Of Parole Supervision Under NERA, A Significant Penal Consequence Of His Plea.

C. Defendant Should Have Been Afforded An Evidentiary Hearing On His Claim That If He Had Been Informed Of The Five Year Period Of Parole Supervision, He would Not Have Pleaded Guilty.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Rockoff in his well-reasoned March 1, 2012 oral opinion. We add the following comments.

The transcript of defendant's plea to the Middlesex County charges does not indicate that the trial judge advised defendant that he would have to serve a mandatory period of parole supervision once he completed his sentence. However, that mistake did not prejudice defendant. Two months before he pled to the Middlesex County charges, defendant pled guilty in Somerset County to three first-degree robbery charges. According to the transcript of the March 30, 2005 plea colloquy, the judge specifically advised defendant that a five-year period of parole supervision would be imposed at the conclusion of his sentence and defendant stated he understood this requirement. Thus, defendant was fully aware that first-degree robbery convictions carried a five-year parole term when he pled guilty to the two Middlesex County robberies two months later on May 23, 2005.

In addition, because defendant successfully bargained to have all of the sentences in each county run concurrently, he is only required to serve one five-year period of parole supervision for all of the charges once he is released from prison. Thus, whether the judge imposed a parole term in Middlesex County or not, defendant would still be required to serve such a term based upon his Somerset County convictions. Therefore, defendant clearly failed to satisfy the second prong of the Strickland test.

1 The parties have not provided us with copies of defendant's judgments of convictions. The "New Jersey Department of Corrections Offender Search Web Page" states that defendant was sentenced in Essex County on September 24, 2004, in Bergen County on June 3, 2005, and in Union County on September 23, 2005. Offender Search Results for Almustafa Baldwin, State of New Jersey, Department of Corrections Offender (Oct. 19, 2013), https://www6.state.nj.us/DOC_Inmater/inmatefinder?i=I (click "Accept"; then enter "000959590B" in the "SBI Number" field; then click "Submit"; then follow "000959590b" hyperlink). He pled guilty to the Somerset County charges on March 30, 2005, but was not sentenced until March 20, 2009. Offender Search Results for Almustafa Baldwin, supra.

2 On March 20, 2009, defendant was sentenced in Somerset County on a number of matters, including three first-degree robbery charges, to an aggregate twenty-year term, subject to NERA, with a five-year period of parole supervision. Defendant does not dispute that this sentence was concurrent to the earlier sentence imposed in Middlesex County.

3 Defendant also argued his trial counsel failed to pursue a speedy trial motion; failed to challenge the adequacy of the factual basis he provided for his plea; and failed to appeal the denial of a suppression motion. These arguments were all rejected by Judge Alan Rockoff and defendant does not raise them on appeal.