STATE OF NEW JERSEY v. LEMONT LOVE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEMONT LOVE,

Defendant-Appellant.

________________________________

September 14, 2016

Submitted June 22, 2016 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-03-0408, 07-03-0502, 08-01-0123, and 09-09-1537.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lemont Love appeals from the order of the Law Division, Criminal Part denying his post-conviction relief (PCR) petition. We affirm. At all times critical to this appeal, defendant was facing prosecution on charges reflected in four separate indictments.

Indictment No. 07-03-0408

On March 1, 2007, defendant was indicted by a Middlesex County grand jury charged with two counts of third degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), one count of third degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a), and one count of fourth degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1b.

Indictment No. 07-03-0502

On March 22, 2007, a Middlesex County grand jury indicted defendant charging him with one count of third degree eluding, N.J.S.A. 2C:29-2b.

Indictment No. 08-01-0123

On January 22, 2008, a Middlesex County grand jury indicted defendant charging him with two counts of third degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), one count of third degree possession of phencyclidine (PCP), N.J.S.A. 2C:35-10a(1), one count of third degree forgery, N.J.S.A. 2C:21-1a(2), and one count of fourth degree theft or unlawful receipt of a credit card, N.J.S.A. 2C:21-6c.

Indictment No. 09-09-1537

On September 11, 2009, a Middlesex County grand jury indicted defendant charging him with one count of second degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1, third degree possession of cocaine, N.J.S.A. 2C:35-10a(1), third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and one count of fourth degree tampering with evidence, N.J.S.A. 2C:28-6(1).

On March 16, 2010,1 defendant negotiated a plea agreement with the State that resolved all of the charges reflected in all four indictments. Through this agreement, defendant pled guilty to one count of third degree distribution of cocaine under Indictment 08-01-123, one count of third degree possession of cocaine with intent to distribute under Indictment 09-09-1537, fourth degree obstructing the administration of law under Indictment 07-03-408, and third degree eluding under Indictment 07-03-502. The State agreed to recommend that defendant receive an aggregate term of ten years, with five years of parole ineligibility.

As explained by the prosecutor at the plea hearing, the aggregate term of ten years with five years of parole ineligibility consists of a five-year term with two and one-half years of parole ineligibility on the charge of third degree distribution of cocaine under Indictment 08-01-123, and, to be served consecutively, an identical sentence on the plea to third degree possession of cocaine with intent to distribute under Indictment 09-09-1537. The trial judge questioned defendant directly to ascertain his willingness to voluntarily plead guilty, and to ensure that he was satisfied with the services of his attorney. The judge accepted defendant's guilty plea after finding that he had knowingly and voluntarily waived his right to stand for trial and that there was a sufficient factual basis to support defendant's admission of guilt on each offense.

On June 22, 2010, defendant submitted a certification in support of his application to withdraw his guilty plea. The motion was denied on July 2, 2010. On December 8, 2010, the trial judge sentenced defendant to an aggregate term of ten years with five years of parole ineligibility, consistent with the plea agreement. On direct appeal, defendant argued that the trial judge erred in denying his application to withdraw his guilty plea. We rejected defendant's argument and affirmed. State v. Love, No. A-2483-10 (App. Div. June 21, 2013).

Before we decided defendant's direct appeal, defendant filed a pro se PCR petition on January 17, 2012, alleging ineffective assistance of counsel. Defendant claimed that his attorney "lied" and "tricked" him into pleading guilty to crimes he had not committed. Defendant requested "to retract [his] plea so [he could] proceed to trial." On March 14, 2014, court-appointed PCR counsel submitted a brief in support of defendant's petition in which he claimed that defendant's trial counsel

didn't merely pressure him into pleading guilty, but instead told outright lies and actually tricked petitioner into pleading guilty by promising him that he would be able to withdraw the plea [at] a later date, and would also receive a significant amount of jail time credit.

The PCR judge found that these serious allegations against defense counsel were not supported by competent evidence. Without more, the PCR judge found that defendant did not make out a prima facie case of ineffective assistance of counsel; therefore, an evidentiary hearing was not required.

Defendant now appeals, raising the following argument

POINT ONE

THE LOWER COURT ERRED IN DENYING MR. LOVE'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.

We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must first demonstrate that defense "counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he or she must show that there exists "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 698. "In determining a claim of ineffective assistance of counsel in a case in which a defendant pled guilty, 'the issue is whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea, and whether that occurred here.'" State v. Smullen, 437 N.J. Super. 102, 108-09 (App. Div. 2014) (quoting State v. Nu ez-Vald z, 200 N.J. 129, 139-40 (2009)).

A court presented with a PCR petition is not obligated to conduct an evidentiary hearing. State v. Jones, 219 N.J. 298, 311 (2014). Rather, Rule 3:22-10 confers upon the court the discretion to determine whether such a hearing is necessary. Ibid. However, our Supreme Court has stated that an evidentiary hearing generally should be conducted "if a defendant has presented a prima facie case in support of PCR." Ibid. (citing State v. Marshall, 148 N.J. 89, 158 (1997)). Once a prima facie case has been established, the claims of ineffective assistance of counsel ordinarily require consideration of "evidence that lie[s] outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).

Here, defendant has not presented a prima facie case of ineffective assistance under Strickland. Defendant's self-serving spurious allegations of impropriety against his trial counsel are not sufficient to meet his burden of proof under the first prong of Strickland. Independent of this substantive deficiency, this court has addressed and rejected on direct appeal defendant's argument attacking the legal viability of his guilty plea. After reviewing the trial judge's decision to deny defendant's motion to withdraw his guilty plea prior to the imposition of a sentence, we concluded

After carefully weighing the Slater2 factors, the balance goes against allowing withdrawal of defendant's guilty plea. Defendant has not made a colorable claim of innocence and has not shown fair and just reasons for withdrawal.

[State v. Love, supra, slip op. at 10.]

Defendant's PCR is a transparent attempt to relitigate the issue we have previously rejected on appeal and is therefore procedurally barred under Rule 3:22-5.

Affirmed.
 

1 It is undisputed that the case was scheduled for trial on the same day that defendant pled guilty. However, the record is not clear as to which one of these four indictments was to be tried first.

2 State v. Slater, 198 N.J. 145 (2009).