STATE OF NEW JERSEY v. DONALD MARSHALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0259-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD MARSHALL,

Defendant-Appellant.

___________________________

February 11, 2014

Submitted February 4, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-02-129.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Donald Marshall appeals from a May 14, 2012 order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was arrested on July 19, 2008, after a police officer observed him engage in a hand-to-hand drug transaction. Defendant was indicted with three third-degree offenses: distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1), possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3), and CDS possession, N.J.S.A. 2C:35-10a(1). He was later arrested on July 2, 2009, for selling drugs on various dates to an undercover police officer. He was charged with second-degree CDS distribution, N.J.S.A. 2C:35-5a(1) and -5b(2).

Due to his prior criminal record, which included four prior convictions for CDS distribution, three of which involved school zone distribution, defendant was extended-term eligible. On January 19, 2010, defendant appeared at a case conference on the first charge, involving the 2008 drug sale. During that conference, the State extended an offer to resolve all of the pending 2008 and 2009 charges, if defendant would plead guilty to one count of third-degree CDS distribution, and one count of second-degree CDS distribution, in return for an aggregate sixteen-year term, half to be served without parole.

During the plea hearing, defense counsel stated on the record that he and defendant had only received the discovery as to the first charge, on which defendant had been indicted. The second set of charges had not yet been presented to the Grand Jury and discovery had not yet been provided. However, the State was only willing to extend the global offer that day and indicated that any delay would result in the offer being withdrawn. The State set forth its proofs on all the charges, in detail on the record, prior to defendant deciding to accept the plea offer. Thus, when defendant accepted the plea agreement, he knew he was doing so without having an opportunity to review the discovery on the second set of charges. He was also told that because he was extended-term eligible on both sets of charges, and they arose from separate offenses on separate dates, he could face thirty years in prison if convicted on all counts.

After placing a thorough statement of reasons on the record on March 5 2010, Judge Jeanne T. Covert sentenced defendant to an extended term of eight years with a four-year parole bar on the third-degree conviction, and a consecutive ordinary term of eight years with a four-year parole bar on the second-degree conviction. Thus defendant received the exact term called for by the plea agreement. He filed a direct appeal, but withdrew it on February 15, 2011. Instead, he filed a PCR petition, alleging that his trial attorney rendered ineffective assistance of counsel by failing to obtain complete discovery from the State on the 2009 charges, failing to file a suppression motion on the 2008 charges, and coercing him into pleading guilty.

At oral argument of the PCR petition, defendant's counsel argued that trial counsel should have filed a suppression motion on the first set of charges, because the police did not have reasonable grounds to believe that they had observed a drug transaction. He also contended that trial counsel should have filed a motion for disclosure of the surveillance location. He further contended that trial counsel should have argued entrapment on the second set of charges, because the undercover officer kept buying drugs from defendant until the total weight of drugs sold equaled an amount that would support a second-degree charge. PCR counsel also argued that if trial counsel had obtained the discovery on the second set of charges, he would have realized that a motion based on entrapment would have been viable.

In response, the prosecutor pointed out that a suppression motion would have failed because, in addition to seeing a "handshake" transaction, the police saw a small bag of drugs fall out of the customer's shorts as they approached, and they found a second bag of drugs on the floor of the porch where defendant and the customer were standing. And the customer gave a statement implicating defendant. The prosecutor also pointed out that there was no surveillance operation prior to the first arrest; the police were driving by and happened to spot the drug sale going on. Moreover, the State argued that there was no valid legal basis for a claim of entrapment, and nothing in the discovery would have led defendant to reject a plea agreement.

In a fourteen-page written opinion issued on May 14, 2012, Judge Covert rejected all of defendant's PCR contentions. She found that trial counsel was not ineffective for failing to file an entrapment motion, because such a motion would have been denied as completely without merit. She reached the same conclusion with respect to the surveillance motion and the suppression motion. Judge Covert found no evidence that defendant was coerced into pleading guilty and found that he presented only "bald assertions" that did not warrant PCR relief. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Judge Covert recalled that she had explained to defendant his potential sentencing exposure if he went to trial and was convicted. She noted that the court gave defendant additional time to consider whether to accept the plea offer and to discuss it with his attorney. She also recalled that defendant knew what discovery was and was not available to him, and that he confirmed that he had reviewed the available discovery with his attorney. Finally, she found no support for defendant's argument that his trial counsel was ineffective at sentencing, noting that counsel obtained defendant the benefit of a very favorable plea agreement. Because defendant failed to present a prima facie case of ineffective assistance, the judge concluded that he was not entitled to an evidentiary hearing on his petition. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

On this appeal, defendant presents the following points of argument for our consideration:

POINT I - THE DEFENDANT'S PCR PETITION SHOULD HAVE BEEN GRANTED ON THE BASIS THAT THE GUILTY PLEA WAS NOT KNOWINGLY AND INTELLIGENTLY GIVEN: DEFENDANT WAS MISADVISED THAT, IF CONVICTED, HE WOULD HAVE BEEN SUBJECTED TO A SENTENCE OF TWO CONSECUTIVE EXTENDED TERM SENTENCES, WHICH IS AN ILLEGAL SENTENCE IN VIOLATION OF N.J.S.A. 2C:44-5a(2). (Partially Raised Below)

POINT II - DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN PCR COUNSEL CERTIFIED THAT TRIAL COUNSEL ONLY HAD A THREE-PAGE AFFIDAVIT OF PROBABLE CAUSE STATEMENT, AND NOT THE OTHER 282 PAGES OF DISCOVERY BEFORE ADVISING HIS CLIENT TO PLEAD GUILTY.

For the first time on appeal, defendant argues that his PCR counsel was ineffective in failing to argue that defendant was misadvised that he was exposed to two consecutive extended term sentences if convicted on all counts. Defendant relies on N.J.S.A. 2C:44-5a(2), which states that when a defendant is sentenced for more than one offense, "[n]ot more than one sentence for an extended term shall be imposed." See State v. Pennington, 418 N.J. Super. 548 (App. Div. 2011), certif. denied, 209 N.J. 595 (2012). He contends that, in the plea form and during the plea hearing, he was erroneously advised that he faced a possible thirty-year term whereas, according to plaintiff, his maximum possible exposure was twenty-five years. He also contends that the prosecutor wrongly stated that defendant could receive a "life" term.

We conclude that all of these arguments are barred on this appeal, because they were not presented to the PCR judge. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, even if we consider them, they are without merit. In the context of a plea agreement, defendant must show that his trial counsel misadvised him or otherwise rendered ineffective assistance and that, absent counsel's deficient representation, defendant would have refused to plead guilty and would instead have insisted on going to trial. See State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). In this case, the record contains no affidavit from defendant that he would have refused to plead guilty had he believed he was facing twenty-five years instead of thirty years if convicted. Nor would that have been a rational choice. Given his age, his eleven prior indictable convictions, the evidence against him, and the lengthy term that awaited him if convicted, it would not have been rational for defendant to reject the plea offer and go to trial. Finally, as the State points out, under N.J.S.A. 2C:43-6f, defendant was facing mandatory, not discretionary, extended terms for CDS distribution, and hence multiple extended terms could be imposed. See State v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999).

Moreover, the prosecutor did not state that defendant was facing life in prison. That is a misreading of the transcript. The prosecutor encouraged defendant, who was fifty years old, to accept the plea offer so that he would have some "life" left to him when he completed his prison term. We conclude that defendant's arguments on this point are completely without merit and warrant no further discussion. R. 2:11-3(e)(2).

Defendant's second point is equally unpersuasive. Before he pled guilty, defendant was well aware that his counsel did not have the discovery on the second set of charges. While his PCR counsel apparently obtained the discovery, the defense still has not pointed to any portion of the discovery that would have justified a decision not to plead guilty. We agree with Judge Covert that there was no basis for a suppression motion and, hence, trial counsel was not ineffective for failing to file such a motion. Defendant's appellate arguments are without sufficient merit to warrant further discussion on this point. R. 2:11-3(e)(2).