STATE OF NEW JERSEY v. ISHMAEL BAILEY

NOT FOR PUBLICATION WITHOUT THE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.

ISHMAEL BAILEY,

Defendant-Appellant.

January 6, 2014

Submitted December 4, 2013 Decided

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-10-1199.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Ishmael Bailey appeals from the August 19, 2011 Law Division order denying his petition for post-conviction relief (PCR) seeking to set aside his guilty plea. For the reasons that follow, we affirm.

On October 30, 1998,defendant pled guilty to nine separate charges under a series of indictments and accusations, pursuant to a plea agreement which provided for a seven-year custodial term and a two-year period of parole ineligibility. One of the nine charges, third-degree endangering the welfare of a child, N.J.S.A.2C:24-4(a),1requires registration and community supervision for life under Megan s Law. At the plea hearing, defendant stated he could read and write English, completed the ninth grade, and understood the proceeding. When asked if he understood the consequences of pleading guilty to endangering the welfare of a child, including community supervision for life, defendant indicated he did, both on his plea form and orally at his plea hearing.

N.J.S.A.2C:43-6.4.

3 On November 12, 2010, defendant filed a motion to withdraw his guilty plea for the endangering charge only; by agreement, it was considered as an application for PCR. In support of his motion, defendant certified that (1) at the time of the plea, he was unaware of its consequences, specifically that he would be subject to parole supervision for life; (2) he did not understand the significance of his guilty pleas because he was reading only at a third-grade reading level; and (3) his counsel intimidated him by threatening him "with a 41.5 year prison term if I did not accept the plea."

After hearing oral argument, Judge Martin Cronin denied defendant s petition, without an evidentiary hearing, finding it time barred under Rule3:22-12 and otherwise lacking merit. This appeal followed.

On appeal, defendant raises the following issues:

POINT I

THE PETITION WAS NOT BARRED UNDER [RULE] 3:22-12(a) OR [RULE] 3:22-4.

POINT II

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION BECAUSE TRIAL COUNSEL WAS INEFFECTIVE.

POINT IV

IN THE ALTERNATIVE, THIS COURT MUST REMAND THE MATTER TO THE TRIAL COURT TO EXPAND THE RECORD SO THAT PETITIONER CAN FULLY PRESENT HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM (Not Raised Below).

POINT V

IN THE ALTERNATIVE, THIS COURT SHOULD GRANT DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA AGREEMENT AS SET FORTH IN STATE v. SLATER, 198 N.J. 145 (2009).

Based upon our review of the record and applicable law, we are satisfied that defendant's appellate contentions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Defendant has not established a prima facie case of ineffective assistance of counsel, as he failed to show his attorney's performance was deficient or resulted in prejudice. We affirm substantially for the reasons expressed by Judge Cronin in his cogent oral opinion of August 19, 2011. We add the following comments.

Because this is defendant's first PCR petition, it is governed by Rule 3:22-12(a)(1), which provides

no petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.

The five-year "time bar should be relaxed only 'under exceptional circumstances' because '[a]s time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.'" State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).

As noted, the initial judgment of conviction was entered in 1998. Therefore, the petition here was clearly filed well beyond the five-year period required by the rule. The record fully supports the court's determination that defendant failed to establish exceptional circumstances to warrant relief from the five-year time bar. As Judge Cronin observed, defendant's claim that he was reading on a third-grade level "is undermined by the fact that the plea colloquy was verbal and . . . defendant repeatedly asserted that he . . . understood[.]"

Even if defendant's application were not time barred, it completely lacks in substantive merit. Defendant contends the trial court erred by denying his motion to withdraw his plea, claiming that his attorney and the plea judge failed to inform him of the consequences of pleading guilty to the endangering charge.

Where a defendant files a motion to withdraw a guilty plea, the court must determine whether the interests of justice would be served by allowing the defendant to withdraw the plea. R. 3:9-3(e). The matter is committed to the sound discretion of the court. State v. Slater, 198 N.J.145, 156 (2009) (citing State v. Simon, 161 N.J. 416, 444 (1999)). The defendant has the burden of presenting "'some plausible basis for his request, and his good faith in asserting a defense on the merits[.]'" State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.) certif. denied, 66 N.J. 312 (1974)).

In resolving the motion, the court must consider the following factors: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal of the plea; (3) whether the plea was entered as part of a plea bargain; and (4) whether withdrawal of the plea would result in unfair prejudice to the State or unfair advantage to the accused. Slater, supra, 198 N.J. at 158-61.

Judge Cronin first determined that defendant had not asserted a colorable claim of innocence to the endangering charge. Defendant's supporting certification failed to even claim innocence or otherwise set forth any basis to question the issue of defendant's guilt. The judge further noted that, when defendant entered his plea to the offense, he provided a factual basis for his guilty plea under oath. The judge considered the remaining Slater factors and concluded that each one supported the denial of defendant's motion.

Defendant's claim of ineffective assistance of plea counsel fares no better. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.

Defendant argues his counsel was ineffective by first failing to inform him about the consequences of his guilty plea to the endangering charge, and then by threatening him with "a 41.5 year prison term" if he did not accept the plea. We do not agree. The record of the plea hearing clearly shows both the court and defendant's counsel fully informed defendant of the consequences of his plea. Additionally, Judge Cronin rejected defendant's claim that his counsel threatened him as "frivolous on its face," noting that his counsel was "ethically obligated to advise his client of the maximum penalty . . . he may face upon conviction."

Defendant failed to demonstrate that counsel s performance was deficient. He faced a maximum sentence of over forty years in prison, as his plea form made clear. Even if he did read at a third-grade reading level, it would not change the fact that the court informed him about the special registration and supervisory provisions he would be subject to as a result of his plea to the endangering charge. Moreover, he answered affirmatively, under oath, that he understood the information, and that his attorney went over that information with him. Defendant's assertions of counsel errors are nothing more than bald assertions.

To prevail, defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif.denied, 162 N.J.199 (1999). Consequently, defendant has not satisfied the first prong of the Strickland/Fritztest. SeeState v. Castagna, 187 N.J.293, 314, (2006) (ineffective assistance requires a determination that counsel's conduct "fell outside the wide range of professionally competent assistance considered in light of all of the circumstances of the case." (internal quotation marks and citation omitted)). Defendant also failed to show that he suffered prejudice due to his counsel's performance.

Defendant further argues the court erred in denying him an evidentiary hearing. The determination whether to hold an evidentiary hearing based upon an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J.451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R.3:22-10 (2013).

Wediscernno mistakenexerciseof discretionby the court in decidingdefendant'spetitionwithoutan evidentiary hearing. Defendant s argument that he robotically answered "yes" to the questioning at his plea hearing is unsupported by the record. While he asserts that the endangering charge was presented last and he was overwhelmed at that point, he is wrong about the order in which the charges were presented. The factual basis for the endangering accusation was established fourth out of eight. The Megan s Law registration and supervision provisions, of which defendant claims he was unaware, were the first consequences discussed by the court after establishing the factual bases for his pleas and confirming defendant had voluntarily signed the plea forms. Only moments before the court questioned him about the Megan's Law consequences of his plea, defendant answered an open-ended question about how he stabbed somebody: "I cut one person across the arm, and the second person, I tried to stab them."

Defendant's petition for post-conviction relief is time-barred by Rule3:22-12, and otherwise lacks merit. We are satisfied the circumstances of this case do not present excusable neglect within the meaning of the rule, nor do the "interests of justice" require relief. State v. Mitchell, 126 N.J.565, 575 (1992).

Affirmed.

1 The other eight charges included two counts of third-degree aggravated assault and single counts of third-degree burglary, third-degree robbery, third-degree possession of heroin with intent to distribute, third-degree terroristic threats, third-degree possession of stolen property, and fourth-degree unlawful possession of a weapon.