STATE OF NEW JERSEY v. ZABIAN HARVEY

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0652-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZABIAN HARVEY,

Defendant-Appellant.

_

February 2, 2016

Submitted January 11, 2016 Decided

Before Judges Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Accusation No. 07-07-1036.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Sevan Biramian, Legal Intern, on the brief).

PER CURIAM

Defendant appeals from an April 11, 2014 order denying his petition for post-conviction relief (PCR). Defendant maintains he received ineffective assistance from his plea counsel. We affirm.

In July 2007, defendant pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). At the plea hearing, defendant acknowledged he would be sentenced to a probationary term subject to 364 days in jail, Megan's Law, and parole supervision for life (PSL). The extensive plea forms indicated that PSL was a component of the negotiated agreement. Although at one point, the plea judge misspoke during the plea hearing and used the term community supervision for life (CSL) instead of PSL, the focus of this aspect of the plea agreement was clearly on PSL. The judge accepted the plea after finding defendant pled guilty freely and voluntarily.

In November 2007, the judge modified only the custodial aspect of the plea agreement, not the imposition of Megan's Law and PSL, and sentenced defendant. Rather than imposing a probationary term with 364 days in jail, the judge sentenced defendant to a suspended three-year prison term subject to Megan's Law and PSL. Before imposing that sentence, the judge gave defendant the opportunity to withdraw his guilty plea, which defendant declined. The judge then sentenced defendant without objection. Defendant did not file a direct appeal from his conviction.

In September 2013, approximately six years later, defendant filed a pro se PCR petition. Defendant's assigned PCR counsel maintained that Rule 3:22-12(a)(1), which requires PCR petitions to be filed within five years from the judgment of conviction, should be relaxed because defendant did not know the difference between PSL and CSL until he read an unrelated court opinion.1 Defendant certified that his plea counsel failed to explain what PSL meant and that PSL would be imposed as part of the sentence. The PCR judge conducted oral argument, denied the petition on procedural and substantive grounds, and rendered an oral opinion.

On appeal, defendant raises the following arguments

POINT I

THE ORDER SUMMARILY DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO INFORM DEFENDANT THAT HE WOULD BE SENTENCED TO PAROLE SUPERVISION FOR LIFE SATISFIED R. 3:22 PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL CRITERIA[.]

POINT II

THE PCR COURT'S RULING DENYING [PCR] VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION[.]

POINT III

THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING R. 3:22-12 BECAUSE THE SIGNIFICANCE OF THE ISSUE RAISED IN DEFENDANT'S PETITION, AND ITS IMPACT ON THE INTEGRITY OF THE PLEA PROCEEDING, WARRANTED RELAXATION OF THE FIVE[-]YEAR TIME BAR[.]

After carefully considering the record and the briefs, we conclude defendant's contention that the PCR judge erred by failing to relax Rule 3:22-12(a)(1) is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief comments.

Rule 3:22-12(a)(1) provides that, except in certain limited circumstances, a PCR petition must be filed no later than five years after entry of the judgment of conviction being challenged, "unless [the petition] alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Such is not the case here.

The time bar established by Rule 3:22-12(a)(1) should only be relaxed in "exceptional circumstances." State v. Mitchell, 126 N.J. 565, 580 (1992). In determining whether to relax the time bar, the court "should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Ibid. The burden of justifying an untimely-filed petition "will increase with the extent of the delay." Ibid. In addition, the petitioner must "demonstrate a serious question about his or her guilt" and be "prepared to provide factual evidence to support" the petition. Ibid. Here, exceptional circumstances are absent and defendant otherwise failed to demonstrate a relaxation of Rule 3:22-12(a)(1) is warranted.

Even though the PCR judge denied the petition procedurally, she also considered the merits of defendant's contentions. For defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). Both the United States Supreme Court and the New Jersey Supreme Court have extended the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Defendant must demonstrate with "reasonable probability" the result would have been different had he received proper advice from his plea counsel. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 407 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. [at 2068], 80 L. Ed 2d [at 698]). We are persuaded the alleged deficiencies raised by defendant clearly fail to meet either the performance or prejudice prongs of the Strickland test.

As to the first prong of Strickland, defendant maintains primarily that plea counsel misinformed him about the penal consequences of his plea and failed to explain he would be subject to PSL. These contentions are belied by the record. As the PCR judge indicated, defendant fully knew that he would be sentenced to PSL as part of the agreement he made with the State.

At the plea hearing, defendant testified that he understood the State's recommendation would include PSL. In defendant's plea papers, he acknowledged the negotiated plea agreement included the imposition of PSL; the court would be sentencing defendant to PSL; the period of PSL would be at least fifteen years; and that he would receive prison time if he was indicted and convicted of violating his PSL. Furthermore, at sentencing, the judge told defendant he would be subject to PSL, explained that a violation of PSL exposed defendant to additional prison time, gave defendant an opportunity to withdraw his plea, and, when defendant failed to do so, sentenced defendant without objection.

As to the second prong of Strickland, defendant produced no competent evidence to demonstrate with "reasonable probability" the result would have been different. At the plea hearing, defendant testified that he pled guilty because he was in fact guilty of the crime. Even if defendant had shown his plea counsel's assistance was deficient, which is not the case, defendant has not shown prejudice or otherwise satisfied prong two of Strickland. Defendant was the beneficiary of a favorable plea agreement into which he knowingly and voluntarily entered, fully understanding the nature and sentencing consequences thereof.

We reject defendant's contention that he was entitled to an evidentiary hearing. A defendant is entitled to an evidentiary hearing only when he or she "has presented a prima facie [case] in support of [PCR,]" meaning that "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (first alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Defendant fails to demonstrate a reasonable likelihood of success on the merits, and thus he is not entitled to an evidentiary hearing.

Affirmed.

1 State v. Schubert, 212 N.J. 295 (2012).