STATE OF NEW JERSEY v. ROBERT MCDOWELL

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT MCDOWELL,

Defendant-Appellant.

________________________________________________________________

June 3, 2014

Submitted December 10, 2013 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-09-0946.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

In May 2010, defendant resolved multiple outstanding charges by entering guilty pleas to six charges. He pled guilty to two counts of Indictment No. 09-09-0946: count two, which was amended from second-degree arson to third-degree criminal mischief, and count six charging him with third-degree resisting arrest. He also pled guilty to two counts of second-degree theft, and one count of third-degree theft as charged in Accusation No. 10-05-0560, and one count of fourth-degree stalking charged in Accusation No. 10-05-0561.

In June 2010, the sentencing court imposed an aggregate sentence of 12 years imprisonment for these charges. Initially, he was awarded 322 days jail credits for each of the sentences imposed for Indictment No. 09-09-0946 and Accusation Number 10-05-0560, a total of 644 days jail credits. In August 2010, the judgment of conviction for the Indictment was amended to remove the jail credits previously awarded. Defendant did not file a direct appeal from his convictions and sentence.

Defendant filed a pro se PCR petition in July 2011 in which he stated he wanted to withdraw his guilty plea and proceed to trial. He provided the following factual basis for his claim for relief:

Lead Detective in the case was charged with official misconduct in 5/2010. Another Madison detective involved under investigation for cocaine/steroid use and sales. Both detectives signed off on almost my entire discovery but I was not made aware that this would have a dramatic on trial. [sic] I would NOT have plead guilty knowing this.

Defendant wrote a letter in January 2012 that supplemented his reasons for seeking PCR. In the letter, he acknowledged that "the removal of jail credits was explained thoroughly to [him]." He contended, however, that he never would have accepted the plea offer "without the full 644 days jail credit" and that this should have been explained to him before he pled guilty. He stated further that he was denied access to his entire discovery, receiving only two hundred pages his attorney had described as "critical." He contended that, despite his request to see the entire file, his attorney stated she would not "lug[] four loaded boxes" to the jail. Defendant also stated he was "led into the plea with a promise of parole eligibility" in eighteen months and the warning that if he did not plead guilty, he would sit in jail for a minimum of six months before his case would be listed for trial.

In defendant's pro se petition, he argued he was denied the effective assistance of counsel because his trial counsel (1) failed to inform him the chief investigator in his case was being prosecuted by the Morris County Prosecutor's Office on charges of official misconduct; (2) failed to review discovery with him; (3) failed to correctly advise him of the amount of jail credit to which he would be entitled as a result of his plea; and (4) advised him not to go to trial, making a false promise he would be eligible for parole in 18 months.

A brief and amended petition were submitted on behalf of defendant on May 23, 2012. In this brief, defendant argued that his claims were not barred by Rule 3:22 and that he had provided prima facie proof that he was deprived of the effective assistance of counsel. In his supporting certification, he maintained that he had told his attorney all along that he "wanted to take the cases to trial as [he] did not believe that the State could prove their case." Although he claimed not to know "the extent of the charges" against the police officer, he admitted that he knew of the officer's arrest before his guilty plea.

The PCR judge denied defendant's petition by order dated August 9, 2012. In his oral opinion, the judge noted that "the proofs against [defendant] were very strong" and that, despite defendant's assertion he would have gone to trial but for the statements made by his counsel, "at no time did he argue that he was innocent of these charges."

The judge recalled that defendant had been concerned with not only the length of the sentence he would serve, but also what type of facility he would serve it in and, based on defendant's own research, adamantly refused to any plea that included a guilty plea to an arson charge. Observing that defendant was disappointed with the Commissioner of Corrections's decision to assign him to a maximum security institution, the judge doubted "that any criminal attorney or very, very few criminal attorneys would have had the knowledge or the foresight" as to what the Commissioner's decision would be. The judge concluded that the failure of defendant's attorney to be able to accurately predict where he would serve his term did not fall below the standard for effective assistance of counsel.

As for defendant's argument about the lead detective who faced criminal charges, the PCR judge stated that this fact was known before the guilty plea and presented no advantage for defendant because the officer was not going to be called as a witness. The judge observed that there were other police officers who were available to testify against defendant. On the jail credit issue, the PCR judge stated he had considered the additional jail credits based on defense counsel's argument and that he later reduced the jail credits to an amount that defendant acknowledged "was the correct and legal number of days that he was to receive."

Finally, the PCR judge considered the factors applicable to defendant's request to withdraw his guilty plea as set forth in State v. Slater, 198 N.J. 145 (2009). The judge noted that defendant made no argument that he was innocent of the charges to which he pled guilty. Because defendant asked to withdraw his guilty plea after sentencing, such relief was to be granted only to avoid manifest injustice, id. at 156, and the judge found no basis for vacating defendant's guilty plea under Slater. The PCR judge concluded that defendant failed to present a prima facie case of ineffective assistance of counsel.

In his appeal, defendant argues that the PCR court erred in denying his petition without an evidentiary hearing. We are unpersuaded by defendant's arguments.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

Like the PCR judge, we are satisfied that defendant satisfied neither of these prongs and therefore failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.