STATE OF NEW JERSEY v. MICHAEL STALLWORTH

NOT FOR PUBLICATION WITHOUT THE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 binding only 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.

MICHAEL STALLWORTH,

Defendant-Appellant.

________________________________

November 15, 2016

Submitted October 31, 2016 Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-04-0457 and Accusation No. 05-11-1568.

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

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Following the evidentiary hearing we ordered in State v. Stallworth, No. A-5248-11 (App. Div. September 3, 2013), defendant Michael Stallworth appeals from the August 12, 2014 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

The essential background facts and procedural history are set forth in detail in our prior opinion and, therefore, a summary will suffice here. On September 7, 2005, defendant pled guilty to an amended charge of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4), under Ocean County Indictment No. 05-04-0457. Stallworth, supra, slip op. at 2. In return for his plea, the State agreed to recommend that defendant receive an eighteen-month sentence. Ibid.

However, prior to sentencing on this offense, defendant pled guilty on November 14, 2005 under Ocean County Accusation No. 05-11-1568 to a separate charge of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). Ibid. The State agreed to recommend that defendant be sentenced to a concurrent eighteen-month term on this charge. Ibid. At the plea hearing, defendant raised some concerns about the future consequences of his plea to this charge if he subsequently committed additional offenses. Id. at 3-6.

On December 22, 2005, the trial judge sentenced defendant in accordance with both plea agreements to an aggregate eighteen-month term. Id. at 5. Defendant did not file a direct appeal. Ibid.

Defendant thereafter assaulted a fellow inmate and, following a guilty plea to third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), under Ocean County Indictment No. 06-05-0811, a different judge sentenced defendant to twelve days in the county jail and two years of probation. Ibid. Defendant did not file a direct appeal from this conviction. Ibid.

While he was on probation, federal authorities charged defendant with selling crack cocaine to a confidential informant in violation of 21 U.S.C. 841(a)(1). Ibid. Following a trial, a jury convicted defendant of this charge and, on November 8, 2007, a district court judge sentenced defendant "as a 'career offender,'" to 195 months in federal prison. Id. at 5-6. Defendant appealed this decision to the Third Circuit Court of Appeals, which affirmed defendant's conviction and sentence. Id. at 6.

Defendant filed a PCR petition on October 29, 2010. Ibid. Defendant asserted that his plea counsel was ineffective because during the plea hearing regarding Accusation No. 05-11-1568, she incorrectly advised him that his convictions for that offense and the amended charge under Indictment No. 05-04-0457 would be treated as a single conviction for purposes of federal sentencing if he was convicted of a federal offense in the future. Ibid. A third trial judge denied defendant's PCR petition without affording him an evidentiary hearing. Ibid.

Defendant appealed and we reversed the trial judge's determination and remanded the matter for an evidentiary hearing. Id. at 14. In our opinion, we highlighted defendant's claim that he "specifically asked his attorney about the possible consequences of his pleas on future federal charges," and stated that the "result we reach[ed]" concerning the need for the remand "might [have] be[en] different" if defendant had not made that claim. Id. at 11. We also found it significant that neither party had provided the trial judge with defendant's federal presentence report or the sentencing transcript, which would have revealed why the federal sentencing judge determined defendant was a career offender. Id. at 7. Therefore, we asked the trial judge to review these materials on the remand. Id. at 12.

On remand, the same trial judge who had rejected the first PCR petition conducted the evidentiary hearing. Defendant testified on his own behalf and did not call any other witnesses. On cross-examination, defendant admitted he never told his former attorney that he was "concerned about someday having a career offender status." Defendant also conceded that he never asked the prior attorney about the possible federal sentencing consequences of pleading guilty to the aggravated assault charge under Accusation No. 05-11-1568.

Cross-examination also revealed that defendant's former attorney's colloquy concerning the impact of defendant having two convictions if he pled guilty to Accusation No. 05-11-1568 was limited to whether as a matter of State law, the convictions would make him eligible for an extended term sentence under N.J.S.A. 2C:44-3. Indeed, during the November 14, 2005 plea hearing for that offense, defense counsel stated

They are separate cases. But for terms of - - hopefully, the event will not arise when [defendant] is in trouble again. But if he were to be, Judge, in terms of anything that would affect an extended term down the road or whatnot, that wouldn't even count because it happened as a juvenile. It is usually counted as one conviction because he would be sentenced on the same day by the same judge but for two separate offenses.

[Id. at 3-4. (emphasis added).]

Thus, there is no proof in the record that defendant's prior attorney provided any advice to defendant on the federal sentencing implications of his plea.

The trial judge also examined the federal presentence report and the sentencing transcript to determine the impact, if any, defendant's plea to Accusation No. 05-11-1568 had on the district court judge's determination to sentence defendant as a career offender. The presentence report specifically addressed this issue, stating in pertinent part

As is shown in [defendant's criminal history], the defendant has been convicted on Aggravated Assault charges on October 20, 2006 (Ind#06-05-00811) & December 22, 2005 (Ind#05-04-00457) in Ocean County Superior Court. Since the instant offense involves Possession with intent to Distribute Crack Cocaine, and the defendant was 18 years or older at the time of its commission, the defendant is a career offender within the meaning of U.S.S.G. 4B1.1.

Thus, contrary to defendant's contention, his plea to aggravated assault under Accusation No. 05-11-1568 was not even referred to in the report, and played no role in the district court judge's determination that he should be sentenced as a career offender.

On the basis of the evidence presented at the evidentiary hearing, the trial judge rendered a written opinion on August 12, 2014, denying defendant's PCR petition. The judge concluded that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different.

The judge found that defendant's former attorney gave defendant "appropriate advice" concerning whether the plea under Accusation No. 05-11-1568 would make him eligible for an extended term under State law in the future. The judge further found that defendant did not ask his attorney about the federal sentencing consequences of his plea and observed that, under State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div.), certif. denied, 162 N.J. 128 (1999), plea counsel had no duty to give advice concerning the sentencing features of other state or federal laws.

Moreover, as evidenced by the federal presentence report, the judge concluded that defendant would have qualified as a career offender under federal sentencing standards based solely on his pleas to aggravated assault under Indictment No. 05-04-0457 and Indictment No. 06-05-0811. Accordingly, the judge found that even if defendant's former attorney had provided him with incorrect advice about his plea to Accusation No. 05-11-1568, the result would not have been different. This appeal followed.

On appeal, defendant argues

POINT I

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND HAD HIS DUE PROCESS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION VIOLATED BECAUSE BOTH THE COURT AND COUNSEL INCORRECTLY ADVISED HIM AS TO THE ENHANCED SENTENCING CONSEQUENCES OF HIS PLEA AGREEMENT.

POINT II

DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA BECAUSE THE NATURE AND STRENGTH OF HIS CLAIM OUTWEIGH THE STATE'S INTEREST IN PRESERVING THE PLEA.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

To establish a prima facie claim of ineffective assistance of counsel, the defendant 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, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Having considered defendant's contentions in light of the record and the applicable law, we affirm the denial of his PCR petition substantially for the reasons detailed at length in the trial judge's written opinion. As noted above, our remand was largely predicated upon defendant's claim that he "specifically asked his attorney about the possible consequences of his pleas on future federal charges." Stallworth, supra, (slip op. at 11). At the evidentiary hearing, however, defendant admitted he never asked his plea attorney about the federal sentencing consequences of his guilty plea to Accusation No. 05-11-1568. The advice the attorney gave defendant during the plea colloquy was limited to his possible eligibility for an extended term under State law.

Moreover, as the trial judge correctly noted, there is "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty." Wilkerson, supra, 321 N.J. Super. at 223. Thus, the judge properly found that defendant's former attorney's performance was not deficient under the first prong of Strickland. Supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The record developed on remand also fully supports the trial judge's conclusion that the second Strickland prong was not met because defendant's plea to Accusation No. 05-11-1568 had no impact on his federal sentence. Defendant was deemed a career offender based on his convictions under Indictment No. 05-04-0457 and Indictment No. 06-05-0811. Thus, he would have been eligible for an enhanced federal sentence even if he had not pled guilty to the charge of aggravated assault under Accusation No. 05-11-1568.

Under these circumstances, defendant clearly failed to establish a basis for plea withdrawal under State v. Slater, 198 N.J. 145, 157-58 (2009). Slater requires a court to weigh the following factors in considering a motion to withdraw a plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid.

In his petition, defendant did not assert his innocence of the charge to which he pled under Accusation No. 05-11-1568. He stated he wished to withdraw his plea so he could seek "a better sentence in the [f]ederal court," a reason that is of only limited significance given the federal court's actual sentencing analysis. Due to the lengthy gap between defendant's conviction on this charge and his PCR petition, a withdrawal of the plea would also clearly result in unfair prejudice to the State. Under these circumstances, the judge properly denied defendant's very belated motion to withdraw his plea.

Affirmed.