STATE OF NEW JERSEY v. LORENZO ROSARIO

NOT FOR PUBLICATION WITHOUT THE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.

LORENZO ROSARIO,

Defendant-Appellant.

_________________________________________________

March 27, 2014

Submitted January 7, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-03-0751.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lorenzo Rosario appeals the May 3, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

The record reveals that on March 26, 2001, a Bergen County grand jury returned an indictment charging defendant, along with five other men, with two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f); and fourth-degree possession of a police scanner while committing a crime, N.J.S.A. 2C:33-22. The charges stemmed from a December 11, 2000 home invasion in Bergen County where defendant and his associates held the residents at gun point and robbed them of money, jewelry, and electronic equipment.

After posting bail for the Bergen County charges, defendant was arrested on September 12, 2001, in New York on a homicide charge. As he was unable to make bail on the New York charge, defendant did not appear for a status conference for the New Jersey charges. An arrest warrant was therefore issued in New Jersey, and a detainer placed on him in New York. Defendant entered a guilty plea for attempted robbery in New York, and on July 9, 2003, he was sentenced to ten years in prison. For reasons not clear in the record, defendant was not brought to New Jersey under the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, until March 2007.

On May 21, 2007, defendant entered a guilty plea in New Jersey to two counts of first-degree robbery, and one count of second-degree possession of a firearm for an unlawful purpose, in exchange for the dismissal of the six remaining counts and a recommendation for a sentence of ten years imprisonment subject to eight-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At the plea hearing, the prosecutor made the following statements to the judge with regard to the recommended sentence:

. . . the reason why he's getting a ten year sentence with eighty-five percent instead of a higher sentence is mainly due to the fact [that] he attempted to contact authorities here in New Jersey directly[,] or even indirectly through his attorney at the time, . . . in order to resolve these issues as soon as possible and he was not brought over until just recently.

. . . .

. . . Since the time that he was sentenced and eligible to come over on the [IAD] he was attempting to come over[,] but for some reason he was not brought over[,] so the State is willing to give him nunc pro tunc day for day credit. But for some failure someplace in the system[,] he would have been over here. We would have resolved this.

On June 29, 2007, the judge sentenced defendant to ten years in prison with eighty-five percent parole ineligibility on each of the robbery counts, and five years in prison with two-and-a-half years parole ineligibility on the weapons count, all to run concurrently to each other and to defendant's New York sentence. Defendant was awarded 127 days of jail credit for the time he spent in custody in New Jersey, but received no jail credit for the time spent in custody in New York.

On October 6, 2010, defendant filed a pro se petition for PCR claiming that his sentence was illegal, and that his plea counsel provided ineffective assistance. Defendant's assigned counsel later filed a letter brief, arguing the following points:

POINT I: DEFENDANT-PETITIONER REQUESTS ADDITIONAL JAIL CREDIT.

POINT II: DEFENDANT WAS NOT PROVIDED DILIGENT REPRESENTATION WITH RESPECT TO THE EXTRADITION PROCESS.

POINT III: THE CONVICTION SHOULD BE SET ASIDE DUE TO THE INVOLUNTARY PLEA.

On May 3, 2011, after hearing argument, Judge Patrick J. Roma entered an order denying defendant's PCR petition without an evidentiary hearing and rendered a thorough written opinion setting forth his findings and conclusions. Judge Roma found that defendant failed to assert a prima facie case in support of his petition under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The judge determined that defendant was not entitled to an evidentiary hearing because he could not demonstrate a likelihood that his claim would succeed on the merits.

Judge Roma found that because defendant was not entitled to additional jail credits as he was being held in another jurisdiction on open charges in that jurisdiction, his counsel was not ineffective for failing to request those jail credits, and defendant was not prejudiced by not being awarded jail credit he did not earn. The judge further determined that because defendant's negotiated plea agreement took into account the time spent in New York, defendant was not prejudiced by the delay in extradition. Finally, the judge found that defendant entered his plea freely and voluntarily, and therefore, his unjustified expectations as to jail credit did not warrant vacating his plea. This appeal followed.

On appeal, defendant raises the following contentions for our review:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE GIVEN "NUNC PRO TUNC DAY TO DAY CREDIT" FROM OCTOBER 1, 2 001 TO JULY 9, 2003, WAS VIOLATED.

POINT II: SINCE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV: DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Id. at 460.

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

This standard also applies in the context of guilty pleas, where attorney competence is required and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012); see also State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012).

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

We have carefully considered defendant's arguments in light of the applicable law, and we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Roma in his May 3, 2011 written decision. We add the following brief comments.

As Judge Roma properly found, defendant has not shown his trial counsel's alleged failure to request jail credits constituted a deficiency resulting in prejudice to his case. It is well-established that defendant was not entitled to jail credit for his time spent in New York on his criminal charges pending in New York. See State v. Perry, 430 N.J. Super. 419, 427 (App. Div.) (holding that a defendant detained in Pennsylvania for that state's charges was not entitled to New Jersey jail credits), certif. denied, 216 N.J. 366 (2013); State v. Mercadante, 299 N.J. Super. 522, 529-30 (App. Div.) (holding that a defendant is not entitled to jail credit in New Jersey while being held in custody on an unrelated charge in another jurisdiction), certif. denied, 150 N.J. 26 (1997).

Further, defendant has not demonstrated that his counsel's performance caused the delay in his extradition. He produced a letter from September 2003 whereby his counsel provided forms for defendant to sign and forward to the prison authorities. The record is devoid of any competent evidence showing that he followed his attorney's direction or explaining what happened in the intervening years that he claims demonstrates his counsel's unprofessional performance.

In any event, we agree with Judge Roma that because defendant's negotiated plea agreement explicitly took into account his time spent in New York awaiting extradition, defendant was not prejudiced by the extradition delay. The prosecutor specified that the State was recommending ten years rather than thirteen to fifteen years incarceration to compensate defendant with "day for day credit" for the time he spent in New York while awaiting extradition. Defendant's contention that he would have received the same plea agreement had he been extradited earlier is an unsupported assertion that is insufficient to prove prejudice to his case. See Cummings, supra, 321 N.J. Super. at 170.

Furthermore, a review of the plea colloquy reflects that defendant entered his plea freely and voluntarily, that he understood the generous nature of his plea and the consequences, and that the judge told defendant he would get jail credit from the date of the plea hearing forward. We discern no evidence in the record showing defendant was "misinformed about the . . . potential penal consequences related to his plea," or given "misinformation" that he "materially relied on" when entering his plea. State v. McQuaid, 147 N.J. 464, 490 (1997).

We are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Furthermore, defendant is not entitled to an evidentiary hearing as he has not demonstrated a reasonable likelihood of success on the merits. See Marshall, supra, 148 N.J. at 158.

Affirmed.