STATE OF NEW JERSEY v. MICHAEL STRADFORD

NOT FOR PUBLICATION WITHOUT THE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 STRADFORD,

Defendant-Appellant.

______________________________________

May 8, 2014

Submitted March 10, 2014 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-0783.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Stradford appeals from an order of the Law Division dated November 26, 2012, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Essex County Indictment No. 04-03-0783 with third-degree conspiracy to violate the narcotics laws, N.J.S.A. 2C:5-2 (count one); third-degree possession of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of CDS (marijuana) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(3) (count three); third-degree possession of CDS (marijuana) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and third-degree possession of CDS (marijuana) with intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1 (count five).

On May 19, 2004, defendant pleaded guilty to count three of the indictment. The State agreed to recommend a sentence of three-years imprisonment. The court sentenced defendant to three years of probation. The State agreed to the dismissal of the other charges. Defendant did not take a direct appeal from the judgment of conviction, dated August 9, 2004.

On January 3, 2008, defendant pleaded guilty in the United States District Court for the District of New Jersey to distribution and possession of cocaine, with intent to distribute. The court sentenced defendant as a career criminal to 188 months of incarceration.

On February 14, 2012, defendant filed a pro se petition for post-conviction relief, claiming that he was denied the effective assistance of counsel. The court appointed PCR counsel for defendant, and counsel filed a brief in support of the petition.

Defendant alleged that his attorney did not advise him of the collateral consequences of his plea. He claimed that, if he had been properly advised, he would not have entered the guilty plea. He further claimed that, since his petition involved an alleged deprivation of his constitutionally-guaranteed right to counsel, his petition was not subject to the time bar in Rule 3:22-12.

On November 16, 2012, the PCR court heard oral argument on the petition. The court filed a written opinion in which it concluded that defendant's petition was barred by Rule 3:22-12. The court found that defendant had not shown excusable neglect for failing to file a petition within five years of the date of the judgment of conviction. The court additionally found that enforcement of the time bar would not result in a fundamental injustice. The court entered an order dated November 26, 2012, denying PCR. This appeal followed.

Defendant raises the following argument for our consideration:

POINT I

THE PCR COURT ERRED IN DENYING MR. STRADFORD'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING.

We find no merit in defendant's argument and, accordingly, affirm the denial of PCR.

Defendant argues that his attorney failed to advise him of certain collateral consequences of his plea. He contends that his attorney did not inform him that, upon his conviction in this matter, he would be unable to obtain a firearms permit, secure certain types of employment, vote while on parole or probation, and be subject to enhancement of sentence in a later court proceeding. Defendant claims that, if he had been properly advised, he would not have pleaded guilty.

As the PCR court recognized, a PCR petition must be filed within five years of the date of the challenged judgment or sentence. R. 3:22-12(a)(1). However, the rule permits a court to consider a PCR petition filed more than five years after the date of the judgment of conviction if the petition sets forth facts showing that the delay in filing was due to "excusable neglect" and "there is a reasonable probability" that if defendant's factual claims are found to be true, enforcement of the time bar "would result in a fundamental injustice." R. 3:22-12(a)(1).

Here, defendant filed his PCR petition seven-and-one-half years after he was sentenced, and two-and-one-half years after the five-year time bar in Rule 3:22-12(a)(1). As the PCR court determined, defendant did not establish that his failure to file a timely PCR petition was due to excusable neglect. He claimed that his trial attorney did not tell him that he had a right to file a PCR petition.

The PCR court properly determined that defendant's explanation, while plausible, was not excusable. The court noted that defendant's claim that he was not informed of his right to file a PCR petition was not corroborated. The court aptly stated that, if such an allegation were sufficient, "the time bar would serve absolutely no purpose."

Moreover, the record supports the PCR court's determination that application of the time bar would not result in a fundamental injustice. When determining whether there is an injustice sufficient to warrant relaxation of the time bar, the court should consider "'the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim.'" State v. McQuaid, 147 N.J. 464, 485 (1997) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)).

The court noted that defendant's delay in filing his petition was "considerable." This was not, the court observed, a situation in which the petition was submitted a few days or few weeks late. In addition, defendant provided no reason to justify such a lengthy delay.

In addition, the court noted that the prejudice to the State from considering the late-filed petition would be "substantial." The court noted that, if PCR were granted and defendant were allowed to withdraw his plea, the State would be forced to try defendant seven-and-one-half years after he entered his plea. Achieving justice many years after the fact may not be possible if memories have faded, witnesses are no longer available and evidence has been lost or not attainable. Id. at 485 (citing Mitchell, supra, 126 N.J. at 575).

The court also found that defendant's claim of ineffective assistance of counsel had little merit. A defendant who asserts that he was denied his right to the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court for consideration of similar claims brought under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

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." Strickland, supra, 466 U.S. at 687-88, 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.

Where, as here, a defendant claims that he was denied the effective assistance of counsel regarding a plea, the defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

In this case, the PCR court pointed out that defendant's claim was based on his assertion that his attorney failed to inform him of certain collateral consequences of his conviction, specifically, his inability to obtain a firearms permit and certain types of employment, the inability to vote while on parole or probation, and the enhancement of sentences if later found guilty on other charges. The court correctly pointed out that defendant had not claimed that his attorney gave him erroneous advice concerning any of these collateral consequences.

The court correctly noted that State v. Nu ez-Vald z, 200 N.J. 129, 142-43 (2009), did not support defendant's claim. There, the Court held that the PCR court had correctly found that defendant was denied the effective assistance of counsel because his attorney gave him erroneous advice concerning the deportation consequences of his plea. Id. at 131; see also State v. Gaitan, 209 N.J. 339, 375 (2012) (holding that defendant was not entitled to relief under Nu ez-Vald z because his attorney did not provide any advice regarding the deportation consequences of the plea, rather than misleading advice or misinformation), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

Moreover, a court is not obligated to inform a defendant of all of the consequences that could flow from a guilty plea but must, at a minimum, ensure that the defendant is fully aware of all "direct" or "penal" consequences of the plea. State v. Johnson, 182 N.J. 232, 236 (2005) (quoting State v. Howard, 110 N.J. 113, 122 (1988)).

In this case, the PCR court noted that defendant's plea resulted in his fifth conviction of an indictable offense. Defendant was convicted in 1995 of unlawful possession of a weapon and receiving stolen property, in 1998 for distribution of heroin and unlawful possession of a handgun, in 1998 for possession of a weapon by a prohibited person, and in 2003 for unlawful possession of a gun. The court observed that it was "extremely unlikely" defendant would be able to obtain a permit to purchase or carry a firearm in this State in view of his criminal record.

Furthermore, the court properly found that defense counsel was under no obligation to inform defendant of the potential for sentencing enhancement in the event he pleaded guilty and engages in criminal conduct in the future. In State v. Wilkerson, 321 N.J. Super. 219, 227-28 (App. Div.), certif. denied, 162 N.J. 128 (1999), we held that a defense attorney was not constitutionally required to inform his client that there may be adverse consequences by way of enhanced penalties if the client commits a future criminal offense.

We are therefore convinced that the PCR court correctly determined that defendant's claims were lacking in merit and therefore enforcement of the procedural bar in Rule 3:22-12 would not result in a fundamental injustice.

Defendant argues, however, that the PCR court should not have denied his petition without an evidentiary hearing. We do not agree. The PCR court should conduct an evidentiary hearing "when there are disputed issues of material facts related to the defendant's entitlement to PCR, particularly when the dispute regards events and conversations that occur off the record or outside the presence of the judge." State v. Porter, 216 N.J. 343, 354 (2013). Here, there was no dispute as to any material fact relative to defendant's petition.

Affirmed.