STATE OF NEW JERSEY v. CHADRICK MIGHTY

NOT FOR PUBLICATION WITHOUT THE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.

CHADRICK MIGHTY,

Defendant-Appellant.

___________________________________________

February 29, 2016

Submitted February 2, 2016 Decided

Before Judges St. John and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-0885.

Joseph E. Krakora, Public Defender, attorney for appellant (Emily A. Kline, 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 Chadrick Mighty appeals from an April 18, 2013 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

We discern the following facts and procedural history from the record. Defendant and three co-defendants were charged in an indictment with second-degree burglary, N.J.S.A. 2C:18-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); third-degree criminal attempt to commit theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eight).1

On January 19, 2011, defendant entered into a plea agreement with the State pursuant to which he pled guilty to first-degree robbery under count two in exchange for the State's recommendation that he be sentenced within the second-degree range to a seven-year custodial term, subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At the plea hearing, defendant testified that on April 9, 2008, he and three co-defendants entered the victim's apartment for the purpose of committing a theft. Defendant carried a metal pipe for the purpose of forcing the victim to give defendant his money. Defendant knew one of his co-defendants was armed with a gun, which was to be used during the theft from the victim. During the course of the robbery, the gun was fired and the victim was injured. Defendant denied being in possession of the gun, but acknowledged that by committing the robbery with the knowledge that his co-defendant would use the gun, he committed the crime of first-degree armed robbery.

In response to questioning by the court, defendant acknowledged reviewing the plea form with his counsel, initialing the first three pages of the form, signing the fourth page, and voluntarily entering into the plea agreement. Defendant testified that he reviewed and signed the supplemental plea form for NERA cases and answered "yes" to the question of whether he understood that the court was required to impose a five-year period of parole supervision, which would begin upon his release from incarceration.

Defendant testified that his answers on the plea forms were accurate and he understood he was pleading guilty to first-degree robbery, which the court would treat as a second-degree offense for sentencing purposes. Defendant said he understood that, because he was pleading guilty to a first-degree crime, he would "have to serve upon [his] release [from incarceration] five years of parole supervision" under NERA. Defendant also acknowledged that under NERA he would be required to serve eighty-five percent of his custodial sentence before being eligible for parole.

The court found defendant provided an adequate factual basis for the entry of his plea and that defendant entered his plea knowingly, intelligently, and voluntarily. The court also found that defendant understood he was going to "receive a seven-year jail sentence for which he must serve 85 percent of the term before parole eligibility and that he'll be placed on parole supervision for five years upon his release from jail." The court therefore accepted defendant's guilty plea and scheduled the matter for sentencing.

On March 16, 2001, defendant was sentenced on the first-degree robbery charge to a custodial term of seven years, which is within the second-degree sentencing range. N.J.S.A. 2C:43-6(a)(2). The sentence was imposed subject to the requirements of NERA. The court ordered that defendant serve eighty-five percent of the sentence without eligibility for parole and that defendant serve a five-year period of parole supervision upon his release from incarceration. The remaining charges against defendant were dismissed.

Defendant did not file a direct appeal. On September 22, 2011, defendant filed a pro se motion to withdraw his guilty plea pursuant to Rule 3:21-1. The court accepted defendant's motion as a petition for PCR, and appointed counsel to represent defendant. Counsel filed a supplemental brief in support of defendant's petition for PCR, arguing that defendant's sentence was illegal. Defendant did not request oral argument, and on April 18, 2013, the court entered an order denying defendant's PCR petition to correct an illegal sentence without an evidentiary hearing and issued a written decision.2 Defendant appealed.

II.

On appeal, defendant raises the following issue

POINT I

THE LOWER COURT ERRED IN FAILING TO FIND THAT DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND IN FAILING TO HOLD AN EVIDENTIARY HEARING BECAUSE DEFENDANT'S COUNSEL DID NOT CONFER WITH HIM ON THE CONSEQUENCES OF HIS PLEA, WHICH MATERIALLY AFFECTED DEFENDANT'S DECISION TO PLEAD GUILTY TO A SECOND DEGREE OFFENSE.[3]

Defendant's claim that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution is governed by the two-part analysis established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

To prevail on a claim of ineffective assistance of counsel, defendant must first "show that counsel's performance was deficient." State v. Taccetta, 200 N.J. 183, 193 (2009) (quoting Fritz, supra, 105 N.J. at 52). This requires a showing that counsel's handling of the matter "fell below an objective standard of reasonableness," and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (1984).

Defendant must also demonstrate that counsel's deficient performance "prejudiced the defense" and there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

In the context of a PCR petition challenging a guilty plea based on the ineffective assistance of counsel, the second prong is established when the defendant demonstrates 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) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009)).

Defendant asserts that his counsel was ineffective by incorrectly advising him that he would receive a three-year period of parole supervision, instead of the five-year period imposed by the court at sentencing. He alleges that his counsel's failure caused him to mistakenly believe that he would receive the three-year period of parole supervision required under NERA for a conviction for a second-degree offense, N.J.S.A. 2C:43-7.2(c), because he was to be sentenced as a second-degree offender under the plea agreement. Defendant contends that as a result of his counsel's failure, he entered into a plea agreement he would have otherwise rejected.

Based upon our review of the record, we are convinced defendant failed to establish a prima facie case of ineffective assistance of counsel because he has not demonstrated prejudice under the second prong of the Strickland standard. "Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

Defendant reviewed and signed the supplemental plea form for NERA offenses that expressly provided he would receive a five-year period of parole supervision as a result of his conviction. He was advised by the court that he would be required to serve a five-year period of parole supervision and testified that he understood the requirement and that it was an acceptable term of his plea agreement.

We conclude that, even assuming defendant's counsel failed to directly inform defendant regarding the sentencing consequences of the plea, defendant has not demonstrated that but for his counsel's alleged errors, he would have rejected the plea agreement and proceeded to trial. McDonald, supra, 211 N.J. at 30. Defendant chose to accept the plea agreement with full knowledge that his sentence would include a five-year period of parole supervision. He therefore was not prejudiced by the alleged failure of counsel upon which his PCR petition is based, and his PCR petition was properly denied. Ibid.

We also reject any contention that defendant is entitled to PCR because the sentence imposed by the court was illegal. A conviction of a first-degree NERA offense requires imposition of a five-year period of parole supervision, even if the defendant is sentenced in the second-degree range. R. 3:22-8; see also State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000) ("[A]lthough the matter was downgraded for sentencing under N.J.S.A. 2C:44-1f(2), defendant was 'sentenced for a crime of the first degree,' N.J.S.A. 2C:43-7.2(c), thereby requiring a five-, not a three-, year period of supervision.").

We are satisfied the court properly denied defendant's PCR petition without an evidentiary hearing. A PCR court need not grant an evidentiary hearing unless "a defendant has presented a prima facie [case] in support of post-conviction relief." State v. Marshall, 148 N.J. 89, 158 (1997) (alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Defendant has not met this burden.

Affirmed.

1 Counts nine and ten of the indictment charged crimes solely against one of defendant's co-defendants.

2 Defendant's motion to withdraw his guilty plea was not directly addressed by the PCR court. On appeal, defendant does not make any argument related to his initial pro se motion to withdraw his guilty plea. We therefore do not address defendant's initial contention that he was entitled to withdraw his guilty plea other than to note that, to the extent it was based upon the claim that his sentence was illegal or because his attorney did not fully advise him he would be required to serve a five-year period of parole supervision, it is without merit for the reasons expressed in this opinion.

3 Defendant's assertion that he "plead guilty to a second offense" is incorrect. He pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, under count two of the indictment.