STATE OF NEW JERSEY v. REGINALD MEDLEY

NOT FOR PUBLICATION WITHOUT THE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.

REGINALD MEDLEY, a/k/a

REGINAL F. MEDLEY,

Defendant-Appellant.

______________________________

November 1, 2016

Submitted October 11, 2016 Decided

Before Judges Haas and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-03-1152.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Reginald Medley appeals from the denial of his petition for post-conviction relief (PCR). After reviewing the record in light of the applicable legal principles, we affirm.

In 2005 defendant pleaded guilty to aggravated manslaughter and other offenses. He was subsequently sentenced to a term of twenty-one years on the manslaughter charge with a period of parole ineligibility. The sentences on the remaining charges were to run concurrent with the manslaughter count. He was also awarded jail credits for the period of time he had been incarcerated following his arrest, minus the time he was serving a sentence imposed as a result of a parole violation.1

Defendant's appeal of his sentence was affirmed by us. State v. Medley, No. A-2221-06 (App. Div. Dec. 10, 2008). In 2012, defendant submitted a motion to enforce the terms of his plea agreement, arguing he had not received a sentence concurrent with his violation of parole as set forth in the plea agreement, and therefore had not been awarded the proper amount of jail credits. The sentencing judge responded to defendant, advising that the plea agreement stated the sentence was to run concurrent "with any and all violations of probation" (emphasis added). Defendant was charged with a violation of parole. Nevertheless, the judge stated: "Assuming, arguendo, that the plea agreement intended to refer to the violation of parole, there was no violation of parole to run concurrent because you had already served your full time for the violation."

In addressing defendant's argument regarding jail credits, the judge referenced State v. Harvey, 273 N.J. Super. 572 (App. Div. 1994), advising that "if a defendant who has been released on parole is arrested for a new offense and a parole detainer is subsequently lodged, credit ceases to accrue on the new charge and begins to accrue on the sentence from which the defendant was originally paroled." The judge concluded the jail credits for the period of July 15, 2003 to April 26, 2004, during which defendant was serving his sentence for the violation of parole, were properly applied to the violation of parole and not the new charges.

A PCR petition was filed by defendant pro se in May 2011, and thereafter, a brief was filed by assigned counsel. Defendant asserted that his trial counsel was constitutionally ineffective in advising defendant he would be entitled to jail credits for the July 2013 to April 2014 period, in his failure to argue for the jail credits, and for failing to present a mitigating factor argument at sentencing.

Judge Gwendolyn Blue heard oral argument on defendant's petition and denied relief in a comprehensive oral decision rendered on April 7, 2014. She determined that the petition was time-barred under Rule 3:22-12 as it had been filed more than five years after the entry of the judgment of conviction. In addressing defendant's claims of the ineffectiveness of his counsel under the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42 (1987) standards, the judge found the arguments to be without merit.

Defendant raises the following issues on appeal

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S MISREPRESENTATION THAT DEFENDANT WAS ENTITLED TO JAIL CREDIT FOR A PRE-PLEA VIOLATION OF PAROLE, AND TRIAL COUNSEL'S FAILURE TO PRESENT A JAIL CREDIT OR MITIGATING FACTOR ARGUMENT AT SENTENCING, SATISFIED PRIMA FACIE CRITERIA FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT 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 BECAUSE THE PCR COURT MISAPPLIED THE PROCEDURAL BARS OF R. 3:22-4 AND R. 3:22-12.

We are not persuaded by these arguments. Rule 3:22-12(a)(1) provides a time limit for the first filing of a PCR petition. It specifies that a petition must be filed within five years after the entry of the judgment of conviction. If the petition is untimely, it must allege 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 on the time bar would result in a fundamental injustice."

The five-year time bar established by Rule 3:22-12(a)(1) is relaxed only in exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not exceptional circumstances exist, courts 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.'" Ibid.

This petition was filed more than three years beyond the five-year time period. Defendant offered no facts satisfying the "exceptional circumstance" standard to warrant the relaxation of Rule 3:22-12. Despite the procedural bar, however, for the sake of completeness, we address the merits of defendant's petition.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, supra, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674, and adopted by our Supreme Court in Fritz, supra, 105 N.J. 42. In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that

(l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

[Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.]

We are satisfied from our review of the record that the PCR judge's finding that defendant failed to meet his burden of proof as to a showing of ineffectiveness of trial counsel within the Strickland-Fritz test, and specifically its second prong, was supported by sufficient credible evidence. Defendant's argument that trial counsel was deficient in misinforming him that he would receive the nine months that he served as part of his violation of parole as jail credits is not supported by the record. The issue of jail credits was raised both at the time of defendant's plea and his sentence. During the plea hearing, counsel stated that defendant had maxed out on his parole violation, and any sentence issued on the parole violation would run concurrent to the sentence contemplated as part of the plea on the new charges. Defendant acknowledged to the plea judge that he understood that his guilty plea could result in a violation of his parole and he could be required to serve a sentence. He further advised that information did not change his mind as to his intention to plead guilty.

Defendant was aware of the consequences of his guilty plea. Under Harvey, supra, he was not entitled to jail credit for the time he served his parole violation.

Lastly, defendant contends that trial counsel was ineffective in failing to raise a mitigating argument at the time of defendant's sentencing. This argument does not warrant any discussion in addition to the comments set forth by Judge Blue in her oral opinion in which she stated

I find that there's absolutely no argument present or presented to this [c]ourt and there's no evidence of any argument available to counsel at the time of sentencing that would show the type of hardship envisioned under mitigating factor number eleven for which an individual seeking a sentence below the range would have satisfied the requirements of mitigating factor number eleven.

See R. 2:11-3(e)(2).

Affirmed.

1 Defendant was arrested on July 11, 2003 for the charges that were the subject of the later plea bargain. He was charged with a violation of parole on July 14. He remained in jail until his sentencing on April 1, 2005. Defendant was awarded jail credit from July 11, 2003 through March 31, 2005 minus the days spent serving the parole violation sentence a period from July 14, 2003 to April 26, 2004. Defendant's motion to be awarded additional jail credits was denied.