STATE OF NEW JERSEY v. JASON R. WAGNER

NOT FOR PUBLICATION WITHOUT THE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.

JASON R. WAGNER,

Defendant-Appellant.

________________________________________________________________

June 25, 2015

Submitted May 11, 2015 Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 10-07-1737, 11-03-0552, 11-03-0678, 11-03-0783, 11-04-0826, 11-05-1107 and 11-07-1834.

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

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant entered guilty pleas pursuant to plea agreements to multiple counts of burglary, theft and drug offenses on two separate dates, September 10, 2010, and September 23, 2011.

On September 10, 2010, defendant entered guilty pleas to two counts of Atlantic County Indictment No. 10-07-1737. On December 3, 2010, defendant was sentenced on Indictment No. 10-07-1737 to two concurrent terms of three years' probation with the condition he spend ninety days in jail. He later entered a guilty plea to violation of probation on this charge. The resulting judgment of conviction also reflects that he was sentenced to a three year term that was concurrent to a sentence imposed on Atlantic County Indictment No. 11-03-0678, and given a total of 357 days of jail credits for his periods of incarceration from April 15 to August 8, 2010, and from January 28 to September 25, 2011.

On September 23, 2011, defendant entered guilty pleas to one count in each of six additional indictments, also pursuant to a plea agreement (Atlantic County Indictment Nos. 11-03-0552, 11-03-0678, 11-03-0783, 11-04-0826, 11-05-1107 and 11-07-1834). The sentence the prosecutor agreed to recommend in this global plea agreement was set forth on the plea form and described by defense counsel at the time of defendant's guilty pleas as follows

His recommendation is going to be on 11-07-1834, five years New Jersey State Prison with a three year parole stip under the Graves Act. That's to run concurrent to a four flat on indictment 11-03-0783 which is to be consecutive to another four flat of indictment 11-03-0552, and then all of that is to run concurrent to a three flat for indictment[s] 11-03-0678, 11-04-0826 and 11-05-1107 with an aggregate sentence of eight serve three, a three year stip.

[(Emphasis added).]

Defendant was sentenced on the six remaining indictments on December 16, 2011. He received an aggregate sentence of six years with three years of parole ineligibility. The sentence imposed on Indictment No. 11-07-1834 was six years with a three-year period of parole ineligibility. He received jail credits on these sentences as follows: Indictment No. 11-03-0552 (5 days); 11-03-0678 (277 days); 11-03-0783 (238 days); 11-04-0826 (5 days); 11-05-1107 (5 days); and 11-07-1834 (138 days).

Defendant did not file a direct appeal from his convictions and sentence. Defendant filed a PCR petition on April 18, 2012. In a written opinion that addressed each of the arguments raised by defendant, the PCR judge denied his petition.

Defendant presents the following issues for our consideration in his appeal.

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE CODE OF CRIMINAL JUSTICE TO HAVE THE PLEA-AUTHORIZED 5 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON HIS PLEA TO UNLAWFUL POSSESSION OF A WEAPON ON COUNT SIX OF INDICTMENT NO. 11-[07-1834] AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO HAVE 357 DAYS TIME SERVED CREDITED ON ALL OF HIS CONVICTIONS, WERE VIOLATED.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A RESENTENCNG HEARING BECAUSE THE DEFENDANT MADE

A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.

To prevail on a claim of ineffective assistance of counsel, defendant must meet a two-prong test, establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l 05 N.J. 42, 58 (l987).

Defendant's arguments rest upon a contention that his counsel was ineffective in her representation of him at sentencing. The alleged deficiencies were in failing to: request the appropriate number of jail credits, seek correction of a sentence on one count that did not comport with the plea agreement, and argue all applicable mitigating factors at sentencing.

Rule 3:22-2(c) provides a basis for post-conviction relief when sentence has been imposed "in excess of or otherwise not in accordance with the sentence authorized by law." The Supreme Court limited this relief to cases in which an illegal sentence has been imposed. State v. Acevedo, 205 N.J. 40, 47 (2011). "[A]n illegal sentence is one that 'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.'" Id. at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000)).

It is evident that the sentence imposed here was not illegal. Indeed, defendant does not contend he is entitled to relief under this paragraph. Instead, he argues his petition is cognizable under Rule 3:22-2(a), which permits relief when there has been "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." The State argues the petition is properly considered and rejected under paragraph (c), and further, that the claims are procedurally barred because they should have been raised on direct appeal. R. 3:22-4(a).

There was no direct appeal here. However, in considering this appeal, we are mindful of the fact that defendant wrote a letter to the Public Defender's office in which he apparently expressed an interest in pursuing a direct appeal. A letter to defendant from the Public Defender, dated March 29, 2012, included the following

This will acknowledge receipt of your recent correspondence.

As I indicated to you in my letter of March 13, 2012, we are awaiting a transcript of the sentencing proceedings.

In your undated correspondence received in this office March 23, 2012, I note you seek to appeal your conviction and/or sentence. I will ask that a transmittal of appeal be forwarded on your behalf indicating that in correspondence received March 23, 2012, you indicated you wanted to appeal. . . . You will be advised when a transmittal of appeal is prepared and forwarded. A notice of appeal should be filed within the time limits that you describe. However, we will attempt to have the time limits expanded.

In the event your appeal is not processed and you are not satisfied with your sentencing, you would have the opportunity to file for post-conviction relief. . . .

[(Emphasis added).]

What is evident from this letter is that defendant expressed a desire to appeal at least as early as March 23, 2012, approximately ninety-eight days after he was sentenced. However, no appeal was pursued and, contrary to the assurance contained in the letter, no motion was filed to expand the time in which an appeal could be filed. Moreover, the letter erroneously advised defendant that if he was "not satisfied with his sentencing," he could file a petition for post-conviction relief. Although defendant has not contended that he relied upon this misstatement of the law in refraining from pursuing a direct appeal, we cannot ignore the likelihood that it would have been reasonable for him to do so. Moreover, he filed his PCR petition shortly thereafter, on April 18, 2012.

Rule 3:22-4(a)(2) provides an exception to the procedural bar when "enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice." In State v. Nash, 212 N.J. 518 (2013), the Court described the grounds for finding this exception

Our courts will find fundamental injustice when the judicial system has denied a defendant with fair proceedings leading to a just outcome or when inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice. To succeed on a fundamental-injustice claim, the petitioner must make some showing that an error or violation played a role in the determination of guilt.

[Id. at 546-547 (citations and internal quotation marks omitted).]

Viewing defendant's argument indulgently, the claim here is that an error occurred that impacted his sentence. However, the alleged error falls short of "play[ing] a role in the determination of guilt." See id. at 547; see also State v. Preciose, 129 N.J 451, 476-77 (1992); State v. Mitchell, 126 N.J. 565, 587 (1992). This is not, therefore, a clear-cut case in which the exception applies. Our discomfort with the possibility defendant may have lost an opportunity to challenge his sentence on direct appeal as a result of misinformation is substantially mitigated by the fact that, as part of his thoughtful and comprehensive opinion, the PCR judge addressed the merits of defendant's arguments.

On the issue of jail credits, the court reviewed all of the judgments of conviction in this case, the dates defendant was incarcerated, the jail credits he received and the fact he was released on Home Electronic Detention System (HEDS) on September 26, 2011. The court stated,

Upon review, it is evident that Petitioner received the correct number of jail credits. Petitioner cannot be given credits for time spent while he was released on a [HEDS] . . . . Thus, Petitioner's argument that he should be given jail credit up to the time of his sentencing on December 16, 2011 must fail. Petitioner's trial counsel was not ineffective for failing to argue the number of jail credits because the number Petitioner received was correct.

On appeal, defendant has merely repeated the arguments made to the PCR court without addressing the factual basis for the ruling that the appropriate number of jail credits was awarded. We therefore agree that this claim fails to satisfy the Strickland-Fritz test and that no evidentiary hearing was required.

The PCR court also rejected defendant's claim that his counsel was ineffective because the sentence he received was inconsistent with the plea agreement. The maximum sentence to be imposed in the global agreement was "an aggregate sentence of eight serve three, a three year stip." The PCR court reasoned that because the aggregate sentence imposed was a six-year term with a three-year term of parole ineligibility, the sentence was in accord with, and in fact, more favorable than, the terms of the plea agreement.

Defendant argues, however, that he was deprived of the benefit of his plea agreement because of the inconsistency between the sentence recommended in the plea agreement for one of the six counts and the sentence actually imposed on that count. The plea agreement called for a recommended sentence of five years' New Jersey State Prison with a three-year period of parole ineligibility on the Graves Act offense charged in count six of Indictment No. 11-07-1834. The sentence imposed upon that count was six years with a three-year period of parole ineligibility.

The PCR court provided the following reason for rejecting defendant's argument

The fact that the Court imposed the [six-year] sentence on Petitioner's weapon conviction rather than on two or more of []his other third degree convictions is of no moment. Thus, Petitioner's trial attorney's performance cannot be deemed ineffective since she secured a sentence less than contemplated by the original plea agreement.

A comparison of the recommended sentences for the component charges of the global plea agreement with the sentences imposed shows that, except for the sentence challenged, the court imposed a term that was the same or more lenient than that in the plea agreement. While the agreement authorized two consecutive terms of four years for Indictment Nos. 11-03-0552 and 11-03-0783, the court imposed consecutive terms of three years. The sentences imposed on Indictment Nos. 11-03-0678, 11-04-0826, and 11-05-1107 were concurrent terms of three years each, as provided in the plea agreement. The net result here is that the maximum aggregate sentence imposed is less than that authorized by the plea agreement and the minimum period of parole ineligibility is the same as that provided in the plea agreement. Defendant has presented no evidence that he has suffered any prejudice as a result of what appears to be merely a technical discrepancy in the sentence imposed. Therefore, we agree with the PCR court that defendant has failed to show his attorney was ineffective in failing to act to have this error corrected and that no evidentiary hearing was required.

The final argument raised by defendant is that his attorney was ineffective because she failed "to argue all mitigating factors at sentencing." This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.