STATE OF NEW JERSEY v. COREY SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1350-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY SCOTT,

Defendant-Appellant.

_______________________________

January 22, 2014

Submitted: January 8, 2014 Decided:

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No.08-04-00711 and Accusation No. 08-1232.

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

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

PER CURIAM

Defendant Corey Scott appeals from the September 7, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.

Defendant was charged in a four-count Hudson County indictment with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and 2C:35-5b(4) (count one); third-degree possession of CDS within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (counts two and four); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count three). In a separate, two-count accusation, defendant was charged with third-degree possession of CDS within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count one); and third-degree aggravated assault, N.J.S.A. 2C:12-1b(5) (count two).

On December 10, 2008, defendant pled guilty to count four of the indictment and to counts one and two of the accusation.1 In return for his plea, the State agreed to dismiss the remaining charges and to recommend an eight-term term of imprisonment, with a four-year period of parole ineligibility, on count four of the indictment; a concurrent ten-year term with four years of parole ineligibility on count one of the accusation; and a concurrent five-year term on count two of the accusation.

Defendant subsequently filed a motion to withdraw his guilty plea. The judge who had accepted defendant's plea conducted an evidentiary hearing and, on October 29, 2009, he denied defendant's motion in a thorough written opinion. On January 5, 2010, the judge sentenced defendant to an aggregate eight-year term, with a four-year period of parole ineligibility. Defendant did not file a direct appeal.

Defendant filed a petition for PCR arguing that Dwight Miller, Esq., the attorney who represented him on his motion to withdraw his plea and at sentencing, was ineffective by failing to (1) notify him of his right to appeal; (2) file an appeal on his behalf from the denial of his motion to withdraw his plea; and (3) appeal his convictions and sentence. Defendant also argued that his prior attorney, who represented him at the time of his guilty plea, was ineffective by failing to (1) review discovery with him; (2) communicate plea offers to him; and (3) meet with him to discuss trial strategy and defenses.

Judge Lisa Rose conducted an evidentiary hearing, at which defendant and Miller testified. Defendant conceded that the trial judge advised him at sentencing that he had forty-five days to appeal his conviction and sentence. Defendant claimed that, prior to sentencing, he told Miller that he wanted to appeal his "whole case" and that Miller told him that he would "eventually put the appeal in for me and get me back in court as soon as possible." Defendant alleged that he signed a "paper" that "was something basically about appeal. I have to go to the Appellate Division." Defendant stated that, "two weeks later, [he] tried to get in contact with" Miller by having his "[g]irlfriend" and the social worker at the Hudson County Jail call him, but the attorney "never returned any phone calls at all."

Miller testified that, prior to sentencing, he spoke to defendant about his appellate options and prepared him for the sentencing proceeding. He gave defendant the appeals rights form, but defendant refused to sign it. However, Miller stated that he explained defendant's appellate rights to him. Miller testified that defendant never asked him to file an appeal on his behalf from the denial of his motion to withdraw his plea or from the sentence he received. Miller did not recall ever receiving any telephone calls from defendant's girlfriend or from a social worker.

On September 7, 2012, Judge Rose rendered a comprehensive written opinion denying defendant's petition for PCR. The judge found that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that defense counsel's performance was deficient and that, but for the deficient performance, the result would have been different. With regard to Miller's representation of defendant during his motion to withdraw his guilty plea and at sentencing, the judge found that defendant's testimony that Miller had failed to apprise him of his appeal rights or file an appeal on his behalf was not credible. As reflected in the transcript of the sentencing proceeding, the trial judge advised defendant of his appeal rights and defendant conceded this was the case. Based upon Miller's "character and demeanor . . . on the witness stand; the lack of any material inconsistencies in his testimony; and corroboration by the sentencing record," the judge credited Miller's testimony that defendant never asked him to file an appeal on his behalf. Therefore, the judge concluded that defendant did not satisfy the first prong of the Strickland test.

Judge Rose also rejected defendant's claims concerning ineffective assistance of plea counsel. The judge noted that defendant had previously, and unsuccessfully, argued that counsel failed to adequately review the case with him or represent him at the plea hearing when he moved to withdraw his guilty plea. However, defendant did not appeal from the trial judge's adverse ruling. Thus, the judge found that defendant's claims concerning plea counsel were barred by Rules 3:22-3 and 3:22-4(a)(1).2

Nevertheless, the judge considered defendant's claims and ruled that they were nothing more than "bald assertions" that he was denied the effective assistance of counsel, without any support in the record. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The judge found that, as reflected in the transcript of the plea proceeding, defendant was fully aware of all the discovery pertaining to his charges; had spoken to his attorney about his options; and was satisfied with his attorney's services. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE DEFENDANT COULD NOT HAVE BROUGHT HIS CLAIMS IN A PRIOR PROCEEDING AND THE INTERESTS OF JUSTICE REQUIRE HIS CLAIMS BE HEARD[.]

POINT II

DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA BECAUSE THE NATURE AND STRENG[T]H OF HIS CLAIM OUTWEIGH THE STATE'S INTEREST IN PRESERVING THE PLEA[.][3]

POINT III

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST[-]CONVICTION RELIEF[.]

(a) Trial counsel was ineffective for failing to Communicate sufficiently with Defendant so He could assist in his own defense[.]

(b) Trial counsel was ineffective for failing to request and/or provide Discovery to Defendant depriving him of assisting in his own defense[.]

We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Rose in her well-reasoned written opinion of September 7, 2012. Suffice it to say, for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Affirmed.

1 Defendant also pled guilty to three violations of probation in connection with sentences imposed in 2005 for prior drug offenses.

2 In pertinent part, Rule 3:22-3 states that a petition for PCR "is not . . . a substitute for appeal from conviction . . . ." Rule 3:22-4(a)(1) states that "[a]ny ground for relief not raised . . . in any appeal taken in any such proceedings is barred from assertion in a [petition for PCR] unless the court . . . finds . . . that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding[.]"

3 On appeal, defendant contends that he should be permitted to withdraw his guilty plea. However, defendant's notice of appeal states that he is only appealing from the September 7, 2012 order denying his petition for PCR. "[I]t is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f)(1) (2014); see also 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). Thus, defendant's challenge to the trial court's October 29, 2009 order denying his motion to withdraw his guilty plea is not properly before us.