STATE OF NEW JERSEY v. BRUCE WILCOX

NOT FOR PUBLICATION WITHOUT THE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.

BRUCE WILCOX,

Defendant-Appellant.

July 16, 2015

Submitted June 16, 2015 Decided

 
Before Judges Alvarez and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 00-05-0537.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Bruce Wilcox appeals from the May 6, 2013 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

On May 14, 2001, defendant entered a guilty plea to seconddegree possession with intent to distribute controlled dangerous substances within 500 feet of certain public property, N.J.S.A. 2C:35-7.1(a).1 On June 29, 2001, the court sentenced defendant to a seven-year term of imprisonment. Defendant did not appeal from the conviction.

Defendant was charged in federal court with conspiracy to distribute heroin, 21 U.S.C.A. 846 and 21 U.S.C.A. 841(b)(1)(A). Pursuant to a negotiated guilty plea, he was sentenced October 1, 2008, in the United States District Court to a term of fifteen years and eight months with a five-year period of parole supervision.

Defendant claimed in his pro se PCR petition, filed on January 28, 2011, that he was sentenced to an enhanced federal term because of his prior New Jersey conviction. The court assigned PCR counsel to represent him, and counsel subsequently filed an amended verified petition and brief in support of the requested relief. In his moving papers, defendant maintained that the five-year time bar found in Rule 3:22-12(a)(1) should be relaxed because his counsel did not inform him that his conviction could be used for sentence enhancement purposes.

PCR counsel waived oral argument; the judge rendered a sevenpage written decision denying the petition without an evidentiary hearing. The judge declined to relax the five-year time bar, noting that defendant did not establish any excusable neglect for the delay in filing of more than ten years after judgment was entered.

Nonetheless, the judge briefly considered the merits of defendant's arguments, ultimately concluding that he failed to demonstrate a prima facie case of ineffective assistance of counsel. The judge was unconvinced that failing to advise a defendant of the potential sentencing enhancement effect on future convictions was similar to failing to advise a defendant of immigration consequences prior to the entry of a guilty plea. We agree.

On appeal, defendant raises the following points for our consideration

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER R. 3:22 POST-CONVICTION RELIEF STANDARDS.

POINT II THE PCR COURT'S RULINGS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT III THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S GUILTY PLEA VACATED BECAUSE, REGARDLESS OF WHETHER TRIAL COUNSEL WAS INEFFECTIVE UNDER THE STRICKLAND TEST, THE FAILURE TO INFORM DEFENDANT OF THE ENHANCED SENTENCING CONSEQUENCES OF HIS GUILTY PLEA VIOLATED HIS RIGHT TO DUE PROCESS OF LAW.

POINT IV THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING RULE 3:22-12 BECAUSE THE SIGNIFICANCE OF THE ISSUES RAISED, AND THEIR IMPACT ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM, WARRANTED RELAXATION OF THE 5 YEAR TIME BAR.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

To demonstrate ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test by demonstrating that "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is 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, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).

"When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would not have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012); see also State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009). Counsel's deficiency in Nu ez-Vald z affected the defendant's immigration status; however, the same analysis has been applied in assessing the merits of ineffective assistance of counsel claims in the context of guilty pleas involving other consequences. See State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nu ez-Vald z standard to assess the materiality of erroneous information provided by counsel concerning the impact of a guilty plea on defendant's right to obtain a firearms identification card).

Failure to advise a defendant of possible or even potential sentencing enhancement consequences, however, is insufficient to establish ineffective assistance of counsel. There is no constitutional requirement for such advice, involving a merely collateral issue.

In State v. Wilkerson, 321 N.J. Super. 219, 224 (App. Div.), certif. denied, 162 N.J. 128 (1999), we noted that the federal courts have consistently rejected the notion "that a defendant who pleads guilty must first be advised that the resulting conviction could someday provide the basis for an enhanced sentence after conviction of a future crime, describing that potentiality as merely a 'collateral consequence' of the plea." Ibid. We also noted that "[s]tate courts that have addressed the issue have come to a similar result." Id. at 226. As we concluded, to require "such advice would implicate speculation. Nor is the judge required to independently give such information to a defendant." Id. at 227-28.

This defendant, as a matter of law, has therefore failed to meet either prong of the Strickland test as he has not demonstrated that his attorney's performance was deficient nor any reasonable probability that he would have gone to trial if he had been otherwise advised. That his attorney did not inform him of a purely collateral consequence did not make his representation ineffective. Nor does the record suggest that such knowledge would have affected defendant's decision to plead guilty. Thus, even viewing the facts in the light most favorable to defendant, no prima facie case was established. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

1 The plea form included in defendant's appendix indicated that he entered a guilty plea to two counts of second-degree possession with intent to distribute within 500 feet of public property, and the Law Division judge's written decision makes reference to two separate offenses. We have only been provided with one judgment of conviction in the appendix. Whether defendant was sentenced on one or two crimes is irrelevant to our decision.