STATE OF NEW JERSEY v. JOSEPH A. PALMARINI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0455-13T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOSEPH A. PALMARINI,

Defendant-Respondent.

__________________________________

October 9, 2014

Submitted September 9, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-12-2254.

Joseph D. Coronato, Ocean County Prosecutor, attorney for appellant (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Ruth E. Hunter, Designated Counsel, on the brief).

PER CURIAM

The State of New Jersey appeals from a post-conviction relief (PCR) order awarding defendant Joseph Palmarini additional jail credit days, in exchange for his withdrawal of his PCR petition, without the consent of the State. In so doing, the PCR judge granted defendant relief without rendering a decision setting forth his findings of facts or law as to defendant's entitlement to PCR relief. We reverse and remand for further proceedings consistent with this opinion.

I

The genesis of this appeal arises from four criminal matters against the defendant in two counties which resulted in plea agreements.

On February 23, 2009, defendant pled guilty to two Ocean County indictments. In the first indictment (Ocean County I), he pled guilty to second-degree robbery. In the second indictment (Ocean County II), he pled guilty to third-degree resisting arrest.

While on bail pending sentencing for the two guilty pleas, defendant continued to violate the law. On May 5, 2009, he was arrested and charged with possession of heroin in Monmouth County. On July 21, 2009, he was arrested and charged with first-degree robbery, second-degree burglary, and second degree aggravated assault in Ocean County (Ocean County III).

On July 30, 2009, nine days after his arrest for Ocean County III, defendant pled guilty to an accusation on the Monmouth County heroin possession charge.

On August 7, 2009, defendant was sentenced on Ocean County I and II. On Ocean County I, he was sentenced to a seven-year term of imprisonment with fifty-two days jail credit. On Ocean County II, he was sentenced to a three-year term of imprisonment with eighty-nine days jail credit. These sentences were to run concurrently.

On October 30, 2009, defendant was sentenced to a 365 days jail term and given five days jail credit for the Monmouth County heroin possession charge.

In December 2009, defendant was indicted in Ocean County III. He pled guilty to second-degree burglary on May 10, 2010. The plea agreement did not address the amount of jail credit days defendant would receive. Defendant's sentencing was scheduled on July 2, 2010, but was adjourned at the State's request.

On October 21, 2010, defendant was sentenced on Ocean III to a seven-year term of imprisonment with eighty-five percent parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2(c).1 He was awarded 112 days jail credit, covering the period, July 2, 2010, his original sentencing date, to October 21, 2010, the day before his actual sentencing date. He was also awarded 329 days gap-time credit, covering the period, August 7, 2009, his sentencing date for Ocean I and II, to July 1, 2010, the day before he was sentenced for Ocean III.

On January 10, 2011, at the request of the New Jersey Department of Corrections, the sentencing judge amended the Judgment of Conviction (JOC) to convert all the 112 days of jail credit to gap-time credit. Defendant objected and filed a motion to restore the jail credit days. His motion was granted on April 15, 2011, when the sentencing judge issued a written decision and amended the JOC by restoring 112 days of jail credit with a reciprocal reduction of his gap-time credit.

After an unsuccessful appeal of his sentence, defendant filed a PCR petition alleging his counsel was ineffective because counsel failed to seek that the entire 329 days gap-time credit defendant was provided be converted to jail time credits.

On July 19, 2013, a PCR petition case management conference was scheduled by the PCR judge "to determine whether or not the matter could be disposed of in a different way than what was requested by the defendant." The conference resulted in the judge ordering defendant to receive fifty-one days jail credit with the defendant agreeing to dismiss his PCR petition. The State did not agree with this resolution. The judge did not issue a decision setting forth findings of fact and conclusions of law upon which his order was founded. The agreement between the judge and the defendant was set forth in the following colloquy

[Defendant's counsel]: Yes, Judge. My client and I had an opportunity to speak for a second time today. Correct, sir?

Defendant: Yes

[Defendant's counsel]: And my client is inclined to accept the amended sentence to include the 51 days of real time or time to be reflected on his amended JOC.

The Court: Okay. I appreciate that. For the record, Mr. - - the prosecutor in this case and Miss O'Neill, who is regularly handling this case, basically are not agreeing to this. This is me putting that out there and making a ruling to that effect. The prosecutor's office is not in any way agreeing to this. So they are not part of this. So just so you understand that this is something that's being done and helping you. And certainly it helps a little but, not a lot. But it does [] reduce the amount of time that your sentence would, in fact, as far as the credits are concerned, that you would be given more credits as a result of this.

[Mr. Prosecutor], am I indicating that that's the State's position, that you are not agreeing with this?

[Prosecutor]: Correct, Your Honor. The State's position is that the defendant is not entitled to any additional credit beyond that which he has already been given.

The Court: Okay. All right. So Mr. Palmarini, understanding all of that, you are in fact agreeable to having me sign an Order giving you those extra days credit?

Defendant: I agree. And I appreciate it. In retrospect, given my position, I tried to cop out from the beginning.

As indicated in the colloquy, the State did not accept the judge's resolution of the defendant's PCR petition. Thus, this appeal followed.

II

Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus. State v. Preciose, 129 N.J.451, 459 (1992). "A PCR hearing is 'not a pro forma exercise, but a meaningful procedure' to root out mistakes that cause an unjust result either in a verdict or sentence." State v. Hess, 207 N.J. 123, 144-45 (2011)(quoting State v. Feaster, 184 N.J. 235, 249 (2005)).

In accordance with Rule 3:22-2(a), a defendant may seek PCR relief based upon on the "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." However, PCR "is neither a substitute for direct appeal, nor an opportunity to relitigate cases already decided on the merits." Preciose,supra, 129 N.J.at 459 (citations omitted). Consequently, under Rule3:22-4, any issue that was not raised on directappeal cannot be a basis for PCR unless it could not have reasonably been raised on direct appeal, denying relief would result in fundamental injustice, or would violate the Constitution of the United States or the State of New Jersey. However, allegations that counsel was so ineffective as to deprive a defendant of his right to counsel are properly raised in PCR proceedings because evidence of such allegations is often outside the trial record. Preciose, supra, 129 N.J. at 460.

A court reviewing PCR petitions based on claims of ineffective assistance of counsel should grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. Id. at 462. "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). Reviewing courts retain discretion to conduct evidentiary hearings, however, it is not required that they must be granted. Preciose, supra, 129 N.J. at 462. When determining whether to grant an evidentiary hearing, the reviewing court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Id. at 462-63. If there are disputed issues as to material facts regarding entitlement to post-conviction relief, a hearing should be conducted. State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000).

We analyze ineffective assistance of counsel claims by applying the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of Strickland requires a defendant to establish that counsel's performance was deficient. Preciose, supra, 129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland,supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed 2d. at 698). See also Fritz, supra, 105 N.J. at 60-61. Even if counsel was ineffective, under the second Strickland prong, prejudice is not presumed and must be proven by the defendant. Fritz, supra, 105 N.J. at 60-61.

Defendant's ineffective assistance claim is that counsel failed to argue before the sentencing judge that all his gap-time credit days should have been converted jail credit days. The PCR judge did not apply the PCR standard set forth above and render a decision. Instead, he entered into an agreement with the defendant, awarding defendant jail credit days in exchange for his withdrawal of the PCR, without the State's approval. There is no basis in law for this agreement.

Furthermore, we will not decide this PCR claim for the first time on this appeal. It is the Law Division's obligation to first resolve PCR claims of ineffective assistance of counsel before presenting it to us on appeal. R. 3:22-1 and R. 2:2-3(a)(1); seealso State v. Calloway, 275 N.J. Super. 13, 15 (App. Div. 1994). Accordingly, the order granting defendant an additional fifty-one days jail credit and withdrawal of the PCR petition is reversed and the matter is remanded to the Law Division for further proceedings consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

1 On December 22, 2010, the Judgment of Conviction was amended to reflect the sentencing judge's decision that defendant's sentence would run concurrent to the sentences he was serving in the Monmouth accusation, Ocean I, and Ocean II. In the plea agreement, the State reserved the right to seek a consecutive sentence, and the defendant reserved the right to argue for a concurrent term.