STATE OF NEW JERSEY v. TERRANCE STOKES

NOT FOR PUBLICATION WITHOUT THE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.

TERRANCE STOKES, a/k/a

TERRANCE Z. STOKES,

Defendant-Appellant.

______________________________

May 30, 2014

Submitted February 11, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 00-10-1226, 00-11-1402, 00-12-1624, 01-01-0034, 01-04-0463, 01-04-0464, 01-04-0507, 01-04-0508, 01-04-0509 and 01-04-0510.

Joseph E. Krakora, Public Defender, attorney for appellant (Paul B. Halligan, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Terrance Stokes appeals from the trial court's February 27, 2012, order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Defendant seeks collateral relief from the sentences imposed on February 8, 2002, in connection with his guilty pleas on October 22, 2001, to selected counts in ten separate Union County indictments. The offenses were committed on seven separate days between April and November 2000. Defendant's sentences and guilty pleas were as follows: (1) eighteen months for fourth-degree criminal trespass, N.J.S.A. 2C:18-3, on April 10, 2000 (amended count one of indictment 00-11-1402); (2) seven years for second-degree possession of a controlled dangerous substance with intent to distribute in or near a public park, N.J.S.A. 2C:35-7.1, on May 9, 2000 (count three of indictment 00-10-1226); (3) two eighteen-month terms for fourth-degree criminal contempt, N.J.S.A. 2C:29-9(a), on July 19, 2000, and August 13, 2000 (count one of indictments 00-12-1624 and 01-01-0034); (5) three seven-year terms for second-degree certain person not to possess a firearm, N.J.S.A. 2C:39-7, on November 10, 13, and 16, 2000 (count one of indictments 01-04-0510, 01-04-0508, and 01-04-0463); and (6) three terms of fifteen years, with parole ineligibility periods of eighty-five percent and five years of parole supervision, for first-degree robbery, N.J.S.A. 2C:15-1, committed on those same three November 2000 dates (count four of indictment 01-04-0509, count seven of indictment 01-04-0507, and count four of indictment 01-04-0464). All ten terms were to be served concurrently.

On the last of the three robbery sentences, charged in indictment 01-04-0464, Judge John S. Triarsi awarded 449 days of jail credit, from November 16, 2000, to February 7, 2002. In the sentences for the other offenses committed in November 2000, the court awarded jail credit only from October 22, 2001, to February 7, 2002. In the remaining cases, the court awarded jail credit for brief periods of post-arrest incarceration, plus the period from October 22, 2001, to February 7, 2002.1 The court rejected defense counsel's argument that defendant was entitled to 449 days of credit on all ten cases. Judge Triarsi reasoned that defendant was arrested based on the robbery charge in indictment 01-04-0464, but not on the other November 2000 offenses.

In each case, Judge Triarsi was clearly convinced that aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), substantially outweighed the non-existent mitigating factors. The judge noted that defendant, who was then almost twenty-one years old, had two prior adult convictions, and eleven adjudications of delinquency, including two robberies if committed by an adult.

On direct appeal, counsel argued defendant believed he was coerced to plead guilty, and he was suffering from mental illness. Defendant also argued the sentence was excessive. We affirmed the sentences on April 24, 2007.2

Defendant apparently filed a pro se PCR petition on April 21, 2008, however a copy is not included in the record. We rely instead on the PCR court's recitation of the case's procedural history. On September 26, 2011, counsel then filed an "amended verified petition for post-conviction relief," although the document included in the record does not include a verification by defendant.

In the amended petition, defendant argued his attorney was ineffective because he did not raise, as mitigating sentencing factors, defendant's "prior drug use, possession and involvement with CDS" and defendant's "prior psychiatric history of hospitalizations and his psychiatric issues and need for medications." Defendant also asserted his counsel was ineffective by failing to seek jail credits from November 16, 2000, through February 8, 2002, instead of October 22, 2001, through February 7, 2002.

At oral argument on the petition in November 2011, defendant's counsel referred to defendant's psychiatric records that she provided to the court. Our record includes uncertified copies of a psychiatric hospitalization record from October 2003 after defendant's sentencing.3 Defense counsel argued that defendant was entitled to jail credits pursuant to State v. Hernandez, 208 N.J.24 (2011).

In opposing relief, the State argued the petition was procedurally barred; defendant had not demonstrated how his mental health would have constituted a mitigating factor; and Hernandezdid not apply.

Judge Robert J. Mega found defendant had failed to establish excusable neglect to justify the filing of his petition beyond the five-year deadline in Rule3:22-12. In particular, there was no showing that defendant's alleged mental illness was so disabling that defendant could not file a petition within the five-year period. Also, the court held that defendant's claim regarding his mental illness as a mitigating factor was barred because it was raised on direct appeal, citing Rule3:22-5.

Applying the well-settled two-prong test, the judge also rejected the argument that trial counsel was ineffective at sentencing by failing to argue the presence of mitigating factors two, three and four, N.J.S.A.2C:44-1(b)(2), (3) and (4). SeeStrickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

Judge Mega found that defendant's alleged mental health and substance abuse history, as reflected in the 2003 record, did not support a finding that defendant did not contemplate his conduct would cause or threaten serious harm, N.J.S.A.2C:44-1(b)(2). Citing State v. Jasuilewicz, 205 N.J. Super.558, 576 (App. Div. 1985), the court held there also was no showing that defendant was provoked by his victims, warranting application of N.J.S.A.2C:44-1(b)(3). Citing State v. Jarbath, 114 N.J.394, 408-09 (1989), the court held there was no showing that defendant's alleged mental health and substance abuse history impaired his ability to comprehend the wrongfulness of his conduct, so as to justify application of N.J.S.A.2C:44-1(b)(4). The court also noted that drug use or dependency did not satisfy the fourth mitigating factor, under State v. Ghertler, 114 N.J.383, 390 (1989). In any event, the court found that there was no prejudice, as there was no showing that defendant would have received a lesser sentence, given the favorable disposition of his plea agreement, and Judge Triarsi's clear finding that the aggravating factors substantially predominated.

Judge Mega also rejected the claim that counsel was ineffective in seeking appropriate jail credits. The judge found that trial counsel did ask for credits from November 16, 2000, for all ten convictions. Moreover, Hernandez, supra, did not apply to defendant's sentence, as the decision was prospective in effect, except as to cases still on direct appeal in which jail credits were contested. 208 N.J.at 50-51. Finally, the reduction from 114 to 109 days from October 22, 2001, to February 7, 2002, was not the result of counsel's ineffectiveness; the 114 days was a simple miscalculation.4

On appeal, defendant argues:

POINT I

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO FIND APPELLANT'S MENTAL HEALTH AS A MITIGATING FACTOR AND TO RESENTENCE HIM ACCORDINGLY.

POINT II

THE POST CONVICTION RELIEF COURT ERRED IN FAILING TO AWARD APPELLANT THE PROPER AMOUNT OF JAIL CREDITS.

We affirm substantially for the reasons set forth in Judge Mega's cogent and comprehensive oral opinion. We add briefly that the record on appeal includes absolutely no competent evidence, in the form of a certification or affidavit from defendant or anyone else, seeRule1:6-6, to support defendant's claim that his behavior was affected by a substance abuse problem or mental illness at the time he committed the offenses for which he was sentenced. Even if we were to consider the 2003 psychiatric record, the references to defendant's history are non-specific as to the time and nature of defendant's condition. Rule2:6-1(a)(1) requires an appellant's appendix to include "such . . . parts of the record . . . as are essential to the proper consideration of the issues."

Defendant's arguments lack sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The court stated on the record that the period included 114 days. However, the judgments of conviction attribute 109 days for that period, which is the correct calculation.

2 The appeal was heard on an Excessive Sentencing Oral Argument calendar. Appellate counsel stated, "It does mention [in] the PCR that he spent some time in a treatment facility, and that he received a psychological evaluation." We presume the reference to "PCR" is a transcription error, and counsel referred instead to the PSR, or pre-sentence report.

3 According to the records, defendant attempted to commit suicide because he was despondent over his brother's death and his inability to attend his funeral. He was diagnosed with "Psychotic Disorder NOS. Depressive Disorder NOS. [and] R/O Malingering." According to the substance abuse history, the records stated, "[p]atient uses alcohol and embalming fluid." The records referred to reported prior treatment at Ann Klein Forensic Center, Arthur Brisbane Child Treatment Center, Elizabeth General, and Marlboro Psychiatric Hospital, but noted that "the admissions to state hospitals are not listed on the computer."

4 Judge Mega also addressed jail credits regarding the disposition of violations of probation on two additional files. However, the judge revised his determination on February 27, 2012. That aspect of Judge Mega's decision is not before us.