STATE OF NEW JERSEY v. STEWART D. PARKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1372-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEWART D. PARKER,

Defendant-Appellant.

________________________________

December 23, 2014

Submitted December 16, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0085.

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a July 8, 2013 order denying his petition for post-conviction relief (PCR). Defendant maintains that his plea counsel rendered ineffective assistance of counsel. We affirm.

In October 2008, defendant pled guilty to second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7. At that time, defendant had been serving time in prison for a parole violation. At the plea hearing, defense counsel and the judge spoke to defendant about whether he wanted his bail revoked pending sentencing. After defendant said that he did not want his bail revoked, defense counsel clarified that defendant would get jail credit for "at least today." After defendant stated again that he did not want his bail revoked, the judge indicated that he did not "want to do anything that diminishes [defendant's jail] credit." Defendant said that he wanted to return to prison and be sentenced in March 2009. Defense counsel reiterated that defendant did not want his bail revoked.

In August 2009, after the court denied defendant's motion to withdraw his plea,1 the judge sentenced defendant in accordance with the plea agreement to five years in prison with five years of parole ineligibility, concurrent to his parole violation. We affirmed the conviction and sentence. State v. Parker, No. A-1608-09 (App. Div. Jan. 6, 2012), cert. denied, 212 N.J. 105 (2012). In our unpublished opinion, we stated that defendant "adamantly opposed revocation of bail," and the judge "expressed repeated concern [to defendant] for defendant's decision [not to revoke bail]." Id. at 5, 12.

In February 2012, defendant filed a pro se petition for PCR. In his petition, defendant contended primarily2 that "the plea bargain didn't give [him his] jail credits which was part of the plea bargain." The PCR judge issued a thorough written opinion denying the petition.3

On appeal, defendant argues the following points

POINT I

THE PCR COURT ERRED IN FAILING TO FIND INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING THE DEFENSE ATTORNEY'S FAILURE TO EXPLAIN TO THE DEFENDANT THE ADVERSE CONSEQUENCES OF NOT REVOKING BAIL AT THE TIME OF [] HIS PLEA HEARING.

POINT II

THE PCR COURT ERRED IN FAILING TO FIND INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING THE DEFENSE ATTORNEY'S FAILURE TO ADVOCATE FOR HIS CLIENT DURING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA CONTRARY TO THE DICTATES OF STATE V. BARLOW. (Partially Raised Below).

POINT III

BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING PURSUANT TO STATE V. PORTER, AND THE FAILURE TO DO SO HAS RESULTED IN FUNDAMENTAL INJUSTICE, REQUIRING REMAND.

POINT [IV]

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in his comprehensive opinion. We add the following brief comments.

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 v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, ___, U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___, U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674).

Our Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel

[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alterations in original) (citation and internal quotation marks omitted).]

Although the question addressed in Nunez-Valdez concerned the defendant's immigration status, we have applied the same standards to assess the validity of a claim of ineffective assistance of counsel in the context of a guilty plea that did not involve the immigration status of the defendant. See State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nunez-Valdez standards to assess the materiality of erroneous information provided by defense counsel concerning the defendant's right to possess a firearm).

We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test, as well as the standard established under Nunez-Valdez. We note that "when a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release." State v. Hernandez, 208 N.J. 24, 43 (2011) (citation and internal quotation marks omitted). Thus, as the PCR judge correctly noted, defendant's jail credit would not have changed even if bail had been revoked.

Affirmed.

1 The judge rendered an extensive oral opinion expressing the basis for his decision to deny defendant's motion to withdraw his plea.

2 The PCR judge considered and rejected all of the other contentions raised by defendant in his petition.

3 The PCR judge was thoroughly familiar with the case because he had also taken the plea, denied defendant's motion to withdraw the plea, and sentenced defendant in accordance with the plea agreement.