STATE OF NEW JERSEY v. MICHAEL L. MADISON

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL L. MADISON, a//k/a

MICHAEL MADISON,

Defendant-Appellant.

_______________________________________

January 22, 2014

Submitted December 9, 2013 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-09-0961, 03-09-1007, 03-09-0955 and 03-01-0097.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert S. Lane, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the letter brief).

PER CURIAM

Defendant Michael L. Madison appeals from an order entered by the Law Division on April 6, 2011, denying his petition for post-conviction relief (PCR). We affirm.

On July 12, 2004, defendant pled guilty to two counts of second-degree robbery, as charged in Indictment No. 03-09-0961. He also pled guilty to three counts of first-degree robbery, one under Indictment No. 03-01-0097, one under Indictment No. 03-09-1007, and one under Indictment No. 03-09-0955.

In the plea agreement, the State agreed to recommend an aggregate sentence of twenty-three years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge stated that the aggregate sentence the court would impose would be twenty-two years, subject to NERA. The State agreed to the dismissal of various other charges.

Defendant was sentenced on September 17, 2004. The sentencing judge imposed an aggregate term of twenty-two years in prison, subject to NERA. The judge also imposed appropriate fines and penalties. Defendant did not file a direct appeal challenging the sentence.

On September 8, 2009, defendant filed a pro se PCR petition. He alleged that the sentences imposed by the trial court were contrary to law. In support of the petition, defendant filed a certification, in which he said he "would like" the sentence imposed on Indictment No. 03-09-0961 to run concurrently with the sentences imposed on Indictments Nos. 03-09-1007, 03-09-0955 and 03-01-0097.

Defendant claimed that his attorney told him that all of his sentences would be concurrent. He said there was confusion between the court and the attorneys on how the sentences were to be imposed. He stated that he was confused during the sentencing hearing and thought he was being sentenced to concurrent terms.

Defendant additionally claimed that his attorney failed to file an appeal challenging the sentence. His attorney allegedly told him that there was no point in such an appeal, even though defendant insisted that he wanted to appeal the sentence. Defendant asserted that he had written several times to his attorney concerning the sentence, but his attorney failed to respond to his letters.

The trial court appointed PCR counsel for defendant, and counsel filed a brief in support of defendant's petition. Counsel argued that defendant was denied the effective assistance of counsel. Counsel maintained that defendant should be re-sentenced and his sentences should run concurrently. PCR counsel also argued that an evidentiary hearing should be conducted on the petition.

The PCR court considered the petition on April 6, 2011, and filed an opinion and order dated April 6, 2011, denying PCR. The PCR court found that defendant had been repeatedly advised that his plea bargain called for an aggregate sentence of twenty-two years, with an 85% parole ineligibility period. The court noted that defendant indicated that he understood and agreed to the sentence. The court stated that defendant received the sentence he bargained for.

The PCR court also noted that defense counsel had convinced the State to reduce its initial offer from twenty-eight years to twenty-three years. Defense counsel had further convinced the sentencing judge to reduce the twenty-three-year sentence to twenty-two years, with an 85% parole ineligibility period.

In addition, the PCR court pointed out that the sentencing judge had found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the offense and the role of the defendant therein, including whether the offense was committed in an especially heinous, cruel or depraved manner); three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The sentencing judge found no mitigating factors.

The PCR court additionally noted that defendant had been eligible for imposition of an extended term, and also was eligible for imposition of a life sentence pursuant to the "three strikes" law. The court also noted that sentences of up to twenty years could have been imposed on each of three counts of first-degree robbery for which defendant was sentenced. Longer sentences could have been imposed because defendant was eligible for extended-term sentencing.

The PCR court concluded that, under the circumstances, defendant failed to establish a prima facie case of ineffective assistance of counsel. The PCR court found that defendant had not shown that his attorney's handling of the matter was deficient or, even assuming it was deficient, that it affected the outcome of the case.

On appeal, defendant raises the following argument for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

More specifically, defendant contends that his attorney failed to advocate effectively on his behalf. He argues that the maximum sentence that could have been imposed on any of the robberies was twenty years. He contends that, without a consecutive sentence, he was "looking at" a maximum twenty-year sentence. He maintains that the State was not advocating for a consecutive term. He claims that his own attorney recommended a consecutive sentence.

Defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

We are convinced that the record fully supports the PCR court's determination that defendant failed to establish a prima facie case of ineffective assistance of counsel. As the PCR court found, defendant did not show that his attorney's handling of the plea negotiations or sentencing were in any way deficient. He also failed to show that, assuming counsel's handling of the matter was deficient, he would not have pled guilty or a shorter sentence would have been imposed.

The record shows that when defendant entered his guilty plea, the judge confirmed on the record that defendant had discussed the plea with his attorney, understood the plea form, signed the form, and was entering his plea knowingly and voluntarily. Defense counsel placed the terms of the plea agreement on the record, including the State's recommendation for imposition of an aggregate twenty-three-year term of incarceration.

The record also shows that the judge agreed to lower the aggregate sentence to twenty-two years, and that defendant would have to serve 85% of the sentence before he would be eligible for parole. The judge noted that the State had initially offered an aggregate sentence of twenty-eight years.

The record additionally shows that the judge, defendant's counsel and the prosecutor discussed how the aggregate sentence would be arrived at. Defense counsel suggested that a consecutive sentence was an option. Defendant was asked whether he understood that twenty years was the maximum ordinary term that could be imposed on certain charges and, in order to arrive at the twenty-two-year sentence, either a consecutive sentence or an extended-term sentence had to be imposed. Defendant stated on the record that he understood. He also acknowledged that he understood he was eligible for an extended term.

At the sentencing hearing, defense counsel asked the sentencing judge to impose an aggregate twenty-year sentence, instead of the twenty-two-year term that the court indicated it would impose when it accepted defendant's plea. The sentencing judge determined that there was no basis to impose less than the twenty-two-year sentence, noting that defendant had entered into the plea agreement with full awareness of its terms.

In order to arrive at the twenty-two-year aggregate sentence, the judge sentenced defendant to two seven-year terms on the second-degree robbery counts charged in Indictment No. 03-09-0961, concurrent to each other, but consecutive to the concurrent, fifteen-year sentences imposed on the first-degree robbery counts charged under Indictments Nos. 03-09-1007, 03-09-0955, and 03-01-0097.

The record therefore supports the PCR court's determination that defendant fully understood the terms of the plea agreement, and agreed to imposition of an aggregate term of twenty-two years of incarceration, which included consecutive sentences. As the PCR court found, defendant received exactly the sentence he bargained for.

Defendant failed to show that his attorney handled the manner in a professionally deficient manner and, even assuming he did, that a shorter sentence would have been imposed if counsel had handled the matter differently. Moreover, defendant did not show that, but for counsel's alleged errors, he would not have pled guilty and would have insisted on going to trial. State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).

Defendant additionally argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. We disagree. Because defendant failed to establish a prima facie case of ineffective assistance of counsel, the PCR court correctly determined that an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.