STATE OF NEW JERSEY v. PATRICK STERLING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0234-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK STERLING,

Defendant-Appellant.

____________________________________

April 20, 2015

Submitted September 30, 2014 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3453.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael D. Kazer, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Patrick Sterling appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a jury trial, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b), but found not guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(2). The jury was not able to reach a verdict on second-degree vehicular manslaughter, N.J.S.A. 2C:11-5. On the eve of retrial, defendant pled to second-degree death by auto, N.J.S.A. 2C:11-5, with a recommended sentence of a downgraded term of three years subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent to the time to be served under the eluding conviction. The court sentenced defendant to a ten-year term for eluding concurrent to a three-year NERA term for death by auto.

Defendant did not file a direct appeal, but filed a pro se PCR petition, and counsel was appointed to represent him. Defendant contended: 1) his sentence was excessive as he had no prior adult criminal record; and 2) his trial counsel was ineffective by forcing him to enter a plea; not telling him he could appeal or offer to file an appeal; and failing to discuss the case and defense strategy with him.

Following oral argument, the PCR judge issued a written decision denying relief. He determined that the defendant abandoned his allegations of ineffective assistance of counsel at oral argument, and the only claim being pursued was his excessive sentence claim. The judge rejected the excessive sentence challenge because it should have been raised on direct appeal, not in a PCR petition. He also stated that the sentence imposed was within our sentencing guidelines. Although the PCR judge felt that defendant abandoned his claims that counsel was ineffective, the court found that defendant did not make a prima facie showing of ineffective assistance and there was no reason for an evidentiary hearing because defendant "produced no certification or affidavit testifying to more specific facts that touch on the issue of establishing ineffective assistance." This appeal followed.

Defendant raises the following points for our consideration

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER RULE 3:22 CRITERIA.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

It is well settled that to establish a PCR claim of ineffective assistance, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Ibid. The test is whether "counsel's conduct fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d 693. Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. To prove this element, a defendant must demonstrate "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 699.

A court reviewing a PCR petition based on claims of ineffective assistance has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462 (1992). "The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing." State v. Cummings, 321 N.J. Super 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[B]ald assertions" of ineffective assistance are insufficient to sustain a claim for PCR. Ibid. When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing should be conducted only if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013).

Rule 3:22-3 provides that PCR is not "a substitute for appeal from conviction[.]" Rule 3:22-2 sets forth the grounds for a PCR petition, and excludes "a claim alleging the imposition of sentence in excess of or otherwise not in accordance of with the sentence authorized by law[.]" Rule 3:22-2(c). "[M]ere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for post-conviction relief and can only be raised on direct appeal from the conviction." State v. Acevedo, 205 N.J. 40, 46 (2011) (quoting State v. Flores, 228 N.J. Super. 586, 592 (App. Div. 1988) (quoting State v. Clark, 65 N.J. 426, 437 (1974), certif. denied, 115 N.J. 78 (1989)). Thus, a defendant must assert a claim of excessive sentence by direct appeal, and not PCR.

As a threshold matter, defendant's argument challenging his sentence made before the PCR court was solely based on it being an excessive sentence. In his PCR petition and supporting certifications, as well as his PCR oral argument, defendant only contended that his ten-year sentence was excessive given his lack of a prior adult criminal record. Defendant does not assert that his sentence was outside the limits set forth in our sentencing guidelines. We completely agree with the PCR court that in this case defendant's PCR petition is not the proper forum for an excessive sentence claim. Id. PCR and appellate counsel's attempt to cloak defendant's excessive sentence claim within his ineffective assistance of counsel claims to avoid the Rule 3:22-2(c) bar against such claims on PCR are thinly veiled and without merit.

Defendant's ineffective assistance of counsel claim that he was forced into the plea and new claim on appeal that trial counsel made misrepresentations that confused him into believing the plea-bargained three-year NERA sentence for death by auto also applied to the sentence to be imposed on his second-degree eluding conviction are not supported by the record. As for the new claim raised on appeal we note that Rule 3:22-4 bars litigation of new claims.1 Nonetheless, we address the merit of the argument along with those set forth on PCR.

Specifically, defendant contends that trial counsel failed to advise him of his right to a jury trial after the trial judge allegedly told defendant he would have a "bench trial," which forced him to enter the plea. Further, appellate counsel asserts that it is "possible" defendant was confused during the plea hearing by trial counsel mistakenly advising defendant that by pleading to death by auto his three-year NERA sentence would result in him being eligible for parole in three years for the eluding charge. We are not persuaded.

Defendant pled guilty to the death by auto charge before his retrial. Prior to a factual basis being provided for the plea, the following colloquy occurred regarding the sentence to be imposed

DEFENSE ATTORNEY: And if I may just add to that, Judge, it's also with the expressed understanding that that sentence will run concurrent -

[PROSECUTOR]: Concurrent.

DEFENSE ATTORNEY: -- to whatever sentence he receives from you on [eluding], the one he stands convicted on by a jury.

. . . .

THE COURT: Mr. Sterling, you heard the terms of the plea agreement?

DEFENDANT[2]: Yes.

THE COURT: Okay. And you understood those terms?

DEFNDANT: Yes.

THE COURT: Is that also your understanding of what the plea agreement is?

DEFNDANT: Yes.

. . . .

THE COURT: Okay. You understand that by pleading guilty to this charge, you're waiving your right to have a trial? You're not going to try this count. We were ready to start the trial on this count. Did you understand that?

DEFENDANT: Yes.

. . . .

THE COURT: All right, you're entering into this plea voluntarily?

DEFENDANT: Yes.

THE COURT: No one's forced you or coerced you in any way?

DEFENDANT: No.

Upon entering his guilty plea, the judge further questioned defendant as to the voluntariness of his plea

THE COURT: You doing this of your own free will?

DEFENDANT: Yes

Simply put, there is no reasonable basis for contending that defendant felt forced into entering into the plea or that trial counsel made misrepresentations which confused defendant such that defendant believed his plea agreement on the death by auto charge would limit his prison term on the second-degree eluding conviction. The sentencing record is clear that defendant was advised that he was receiving separate but concurrent prison terms for the two convictions. Defendant's bald PCR assertions are insufficient to overcome the clear record that the plea was entered "knowinglyandvoluntarily,. . . with a full understanding of the charge and consequences of the plea." State v. Slater, 198 N.J. 145, 155 (2009); R.3:9-2. Under these circumstances, failure to allow an evidentiary hearing was not an error.

We also refer to the record to address defendant's claim that trial counsel did not advise him of his appeal rights. At the conclusion of his sentencing, defendant acknowledged to the judge that he had reviewed his appeal rights with his attorney and understood that he had forty-five days to file an appeal, with a right to ask for a thirty-day extension, or he would lose his right to appeal. Also, defendant understood from the judge that he had a right to counsel and that the Office of the Public Defender would represent him if he could not afford an attorney. Consequently, defendant's contention that the PCR judge's observation that his sentencing Notice of Appeal form was not in the court file is of no import. We therefore find no ineffectiveness of counsel and no need for an evidentiary hearing.

Likewise, defendant's remaining ineffectiveness assistance claim that trial counsel did not discuss the case with him and advise him of the defense strategy is without merit. Assuming that defendant is correct, he does not show prejudice under the Strickland test. He offers no facts that establish his conviction would have been positively altered if counsel discussed his case with him and advised him of a defense strategy. See State v. Miller, 216 N.J. 40, 70 (2013) (requiring and finding no prejudice to establish an ineffective assistance claim where a new public defender was assigned to case four days before trial and only met with defendant day before trial).

Affirmed.

1 Rule 3:22-4 provides, "Any ground for relief not raised in a prior proceeding under this rule . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the [PCR] hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey."

2 Defendant was under oath.