STATE OF NEW JERSEY v. AHMAD IBRAHIM

NOT FOR PUBLICATION WITHOUT THE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.

AHMAD IBRAHIM,

Defendant-Appellant.

___________________________________________________

October 16, 2014

Submitted September 9, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 02-06-0782, 02-08-0997, 03-03-0235, 04-04-0226, 04-08-1116, 05-04-0400, 09-06-0757.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the statement in lieu of brief).

PER CURIAM

Defendant Ahmad Ibrahim appeals from the January 16, 2013 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

We discern the following facts from the record. On June 10, 2009, a Passaic County grand jury indicted defendant for second-degree leader of organized crime, N.J.S.A. 2C:41-1 and 2C:5-2(g); second-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2(a) and 2C:20-4(a); second-degree theft by deception, N.J.S.A. 2C:2-6(a) and 2C:20-4(a); second-degree conspiracy to commit identity theft, N.J.S.A. 2C:5-2(a) and 2C:21-17(a), (c)(3); second-degree identity theft, N.J.S.A. 2C:2-6(a) and 2C:21-17(a), (c)(3); third-degree conspiracy to commit credit card theft, N.J.S.A. 2C:5-2(a) and 2C:21-6(c); third-degree credit card theft, N.J.S.A. 2C:2-6(a) and 2C:21-6(c); and third-degree conspiracy to commit receiving stolen property, N.J.S.A. 2C:5-2(a) and 2C:20-7(a).

The indictment charged that between September 1, 2007 and April 18, 2008, defendant, while an inmate at the Passaic County Jail on federal charges, contacted various individuals outside the jail for the purpose of obtaining money using stolen identities. Defendant appropriated the identities of other inmates and with the help of co-conspirators set up bank accounts, obtained credit cards, and purchased merchandise using the stolen identities. As a result of the conspiracy, defendant and his co-conspirators obtained funds in excess of $75,000.

On January 5, 2010, defendant pled guilty to second-degree conspiracy to commit theft by deception and second-degree conspiracy to commit identity theft. As part of the plea agreement, the State agreed to dismiss the remaining counts against defendant, to recommend two concurrent ten-year sentences with five years of parole ineligibility, and not to take a position as to whether the sentences should run consecutive or concurrent to defendant's federal prison term or outstanding violations of probation (VOPs). The State also agreed that defendant would be entitled to jail credit1 for time served from September 3, 2009 through his sentencing, even though he was serving his federal sentence at the time. Prior to defendant pleading guilty, the trial judge emphasized that he was only approving the agreement because the 6272 days of jail credit due on the VOPs would not apply to defendant's ten-year sentence on the indictment. He underscored to defendant that he would have to serve five years before being eligible for parole.

At the March 23, 2010 sentencing hearing, the trial judge proceeded to sentence defendant in accordance with the plea agreement. The trial judge determined that defendant's sentence would run concurrently to his federal sentence and to any sentence subsequently imposed as a result of his VOPs. With respect to the VOPs, the trial judge terminated defendant's probation as "without improvement[.]" Defendant's counsel did not object to this decision. As a result of this decision, the 627 days of jail credit for the VOPs were rendered moot.

Defendant's direct appeal related solely to his sentence, which we affirmed on December 13, 2011. State v. Ibrahim, No. A-1003-10 (App. Div. Dec. 13, 2011). Subsequently, defendant filed his PCR petition on February 16, 2012. On August 30, 2012, defendant's counsel filed a supplemental brief in support of his PCR petition setting forth the following arguments

POINT I: PETITIONER IS ENTITLED TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND THE CONDUCT OF TRIAL ATTORNEY [] WAS INEFFECTIVE.

POINT II: PETITIONER SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA D09-06-0757I, 02-06-782I, 02-08-997I, 03-03-235A, 03-03-238A, 04-03-226I, 04-08-1116, 05-04-4000A AND HAVE THE MATTERS REMANDED FOR A NEW TRIAL.

POINT III: PETITIONER MAINTAINS AND INCORPORATES BY REFERENCE ALL ARGUMENTS PREVIOUSLY PRESENTED IN PETITIONER'S PETITION FOR POST-CONVICTION RELIEF AND IN THE PRO-SE BRIEF ATTACHED WITH PETITIONER'S PETITION FOR POST-CONVICTION RELIEF.

On January 16, 2013, Judge Raymond A. Reddin, who had also presided over defendant's plea and sentence, heard oral argument on defendant's PCR petition and denied it. The judge rejected defendant's arguments that he was entitled to the 627 days of jail credit on his ten-year sentence. The judge noted that at the January 5, 2010 plea hearing, he specifically told the defendant that he would not have approved the plea agreement, especially the concurrent sentences, if defendant was going to receive the 627 days of jail credit against the ten year sentence. If defendant had been entitled to that hefty credit, the judge explained, it would have "rendered the sentence [] unjust and too light[.]"

The judge also rejected defendant's argument that his lawyer was ineffective, noting that the lawyer "fought very hard" to get defendant "the best possible deal[.]" The judge found that without the "very good lawyering" that defendant received, he would have been looking at a significantly longer sentence had he opted to go to trial. This appeal followed.

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

POINT I: THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT AN EVIDENTIARY HEARING ON HIS MOTION FOR POST-CONVICTION RELIEF BASED UPON HIS HAVING MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, WHERE COUNSEL GAVE IMPROPER ADVICE AS TO THE JAIL CREDITS DEFENDANT WAS TO RECEIVE AT SENTENCING.

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 v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 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, 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); State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012). Moreover, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. "[B]ald assertions" of ineffective assistance are not enough to meet this burden. 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.

A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of "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). However, an evidentiary hearing need not be granted where "the defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. (citing Preciose, supra, 129 N.J. at 462-64).

Having considered the record in light of the applicable legal principles, we conclude that defendant's argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons provided by Judge Reddin in his January 16, 2013 oral opinion. We add only the following brief discussion.

Defendant's argument that his lawyer misadvised him as to the amount of jail credits he was to receive and that this bad advice caused him to enter into the plea agreement is unpersuasive. The record demonstrates that at the plea hearing Judge Reddin unambiguously informed defendant that he would not be receiving the 627 days of jail credit from the VOPs on his ten-year sentence. The judge pointedly explained that he would have rejected the plea agreement if defendant was entitled to such a large amount of jail credit since granting the credit would have "rendered the sentence [] unjust and too light[.]" Moreover, at the sentencing, after some discussion, defendant was credited with 201 days of jail credit against his ten-year sentence, which had been agreed to in the plea agreement, and he did not protest or suggest that he expected more.

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.

1 Later calculated to be 201 days.

2 Later calculated to be 624 days.