STATE OF NEW JERSEY v. MARK EVANS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4316-03T44316-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK EVANS,

Defendant-Appellant.

 

Submitted: October 26, 2005 - Decided:

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Number 99-02-0208.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Yasmeen Shihabi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Mark Evans, a/k/a Mahdi Carr, appeals from an order entered in the Law Division on October 14, 2003, denying his application for post-conviction relief. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

On May 19, 1999, defendant pled guilty to a charge of second-degree robbery in Atlantic County Indictment Number 99-02-0209, and to a charge of third-degree possession of a controlled dangerous substance in Atlantic County Indictment Number 99-01-0066. Defendant was sentenced to an aggregate concurrent term of seven years' imprisonment, to run concurrently with any violation of probation that he would receive from the Law Division in Camden County.

Defendant had previously been sentenced on convictions in Camden County to, inter alia, a term of life imprisonment with a fifteen-year period of parole ineligibility. He served approximately five years of that term, and was permitted to enter a drug program; he completed the program and was released on probation. It was while he was on probation that defendant committed the offenses in Atlantic County, referenced above, to which he pled guilty.

In his pro se petition for post-conviction relief, defendant contended that at the time he entered his plea he had not understood the effect that entering a guilty plea in the Atlantic County matters would have on his violation of probation charge pending in Camden County. A hearing was conducted in the Law Division before Judge Michael R. Connor on February 2, 2002. The judge treated the matter as an application to vacate defendant's guilty plea. After reviewing the plea transcript, and considering the arguments of counsel, the judge found that defendant had been fully aware of the potential consequences that the guilty pleas in the Atlantic County could have on the violation of probation charge in Camden County, stating in pertinent part:

The defendant negotiated a guilty plea in this court before now-retired Judge Guerrera with respect to a second-degree robbery and a third-degree possession of CDS. He received that bargain for a sentence in this county and was then dealt with in Camden [County] by way of a violation of probation. And some of the history on this is probably necessary to set forth for an understanding of what occurred. In Camden, on a sentence date of July 3, 1991, a sentence for an armed robbery, certain other charges and another armed robbery, certain other charges. On one of the armed robberies it was a twenty, do ten, and on another it was a life, serve 15 years before eligible for parole. A motion [in the Camden County matter] for a change of custodial sentence was made to permit the defendant to enter into a drug treatment program. With the gift of a lifetime, that life sentence was modified to a probation[ary term] conditioned upon the drug program, perhaps some other things, but at least that is clearly evidenced from the court's record in this particular case. So the defendant was there, knew he got life, knew that sentence was changed to probation, but cannot have known otherwise but that on the sentence that he was serving the Camden probation for on one of those counts there was a life sentence.

Then we come to what transpires in Atlantic County. And I refer to page two of the plea transcript. And we have the recitation of [defendant's counsel, Assistant Deputy Public Defender Karen J. Andrews]. I'll begin [on page 2] at line five: "Mr. Carr has agreed to plead guilty to Count 1 of each indictment[]. . . . In exchange for his guilty plea, the prosecutor has agreed to recommend a sentence of seven years New Jersey state prison concurrent to any time that may be imposed on a violation of probation that may . . . result from this plea and concurrent to four years of New Jersey state prison on Indictment [99-01-0066]." I skip, then I go down to line 21, and the court asks this of Mr. Carr: "All right, Mr. Carr, are you presently on parole or probation? The defendant: Probation. The Court: Do you understand that the court that placed you on probation can impose whatever sentence it could have imposed when they placed you on probation, right? The defendant: Yes." And that was life, do 15, is what that was. And the defendant's claim not to have known that, I think, is unavailing.

Another thing the defendant says in his moving papers is that he really wasn't guilty. Page four of the transcript, line seven, "The Court: Are you pleading guilty because you are guilty?" Answer by the defendant: "Yes. The Court: Tell me about [the] 4th of December, 1998 in Atlantic City with respect to the robbery upon another person, a George Cruz. Tell me what happened. Tell me what you did. The defendant: George Cruz, that's my neighbor. We live a couple doors down, had a few drinks. We was fighting. We got into a little scuffle. I took his money from him after we was fighting, I took his money." Strong-arm robbery is what you have there. And with respect to the possession, clearly in the transcript there is in, in the defendant's own words, that. So I would hold that the defendant's efforts at this point in time to retract his plea are unavailing for the reasons which I've articulated and would deny the motion.

An order denying defendant's motion to vacate his guilty plea was entered on February 19, 2002.

Subsequently, defendant filed additional papers in support of his application for post-conviction relief, including a certification from his counsel at the plea hearing, Assistant Deputy Public Defender Andrews dated July 10, 2002, stating in pertinent part that defendant "never informed [her] that he had been serving a life sentence from Camden County that was commuted to a probationary sentence with the condition he complete a drug rehabilitation program[;]" that she was "certain that [she] did not know at the time he pled guilty in Atlantic County that he was facing a life sentence on the violation of probation in Camden County[;]" and that she was "certain that [she] never asked Mr. Carr whether he would receive a life sentence on the violation of probation."

On October 3, 2003, another hearing was conducted before Judge Connor, this time focusing on defendant's petition for post-conviction relief. In denying the application, Judge Connor stated, in pertinent part:

We are back before the court because there were issues as to what could or could not be obtained with regard to transcripts of proceedings and the like. And when Mr. Carr was initially before the court, although the matter was heard and the petition denied, I did so without prejudice in the event that there should be some additional materials that could be obtained or could be presented. So in fairness to Mr. Carr, on an issue of this magnitude, it's appropriate for the court to consider . . . the merits of the issue, and I do so because of the difficulties making sure that all transcripts available were obtained. We have at this point, I think, everything that anyone is able to realistically procure, and this the matter would be ripe for determination.

The background of this case is that the defendant had been sentenced in Camden County on charges there to a life term with a 15 year period of parole ineligibility. He served approximately 5 years of that sentence and was permitted to enter a drug program arising out of a change of custodial sentence. And to his credit the defendant successfully completed that program.

Regrettably, he was later charged with a robbery and possession of CDS by the Atlantic County Prosecutor's Office. If guilty of that he would, as a matter of law, have violated the terms and conditions of the probation in Camden County. And thus the defendant was understandably reluctant to enter into a plea agreement in Atlantic County because of fear of the consequences that would have on his Camden County probation.

And based on what is in the record it is abundantly clear that the parties were aware of this concern. And, indeed, Judge Guerrera, who took the plea, postponed the taking of the defendant's plea until there was some ascertaining what would or could occur in Camden County. And that's readily apparent from the April 21st, 1999 transcript. From the transcript of the proceedings of May 19th, 1999, the defendant entered into a plea agreement. And it's abundantly clear from that transcript that the defendant was made aware at that point in time that this had the potential of violating the Camden County probation and that whatever happened there was in their control, not within the control of the courts here in Atlantic County. I would indicate with regard to that, April 21st, 1999 transcript, page 2, May 19th, 1999 transcript, pages 2 to 4.

There is absent in this record, despite opportunity given to obtain transcripts and the like, that the defendant was offered any promises or assurances from his attorney what would occur with respect to his Camden VOP; rather, what is before this court does not support that assertion.

Under the circumstances I am satisfied that there has been nothing documented which would change the prior ruling in this particular case, and that is that the defendant, mindful of the risk which he faced in Camden County, and after having been told that they could do with him whatever they chose on the violation of probation, nonetheless entered into the Atlantic County plea agreement. That being so, for the reasons articulated, I would deny the motion for post-conviction relief.

An order denying defendant's application for post-conviction relief was entered on October 14, 2003. An order denying defendant's motion for reconsideration was issued on December 16, 2003.

On appeal, defendant presents the following argument for our consideration:

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN DENIED WITHOUT TAKING TESTIMONY FROM MS. ANDREWS REGARDING HER ASSERTION THAT SHE WAS UNAWARE OF THE POTENTIAL SENTENCE ON THE CAMDEN COUNTY CASE.

After analyzing the record in the light of the arguments advanced by the parties in their briefs, we conclude that the issue presented by defendant is without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth by Judge Connor in his oral opinions delivered on February 1, 2002, and October 3, 2003.

It is abundantly clear from the record that when the plea hearing was conducted in Atlantic County on May 19, 1999, everyone was fully aware there was a pending violation of probation charge in Camden County. In the written plea agreement, defendant acknowledged his understanding that his guilty pleas may result in a violation of probation. When questioned concerning his agreement to the plea, defendant replied that he understood "that the court that placed [him] on probation can impose whatever sentence it could have imposed when they placed [him] on probation[.]" Moreover, defendant himself had expressed his concern about the impact of the plea on the violation of probation charge in Camden County at the status conference held on April 21, 1999. Defendant had explained to the judge the details of his life sentence in Camden County, upon which the violation of probation was based. As a result, the judge postponed the plea hearing to May 19, 1999. Defendant's argument that the trial court erred in failing to order an evidentiary hearing to allow Ms. Andrews to testify concerning the content of her certification is specious. An evidentiary hearing would only be necessary if there were "material issues of disputed fact which cannot be resolved by reference to the existing record[.]" State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). Here, the only conclusion that could be reached from the clear content of this record is that defendant was fully aware of the potential consequences that his guilty plea to the Atlantic County matters would have on his violation of probation charge then pending in Camden County; Ms. Andrews' testimony could not change the clear record in this matter.

 
Affirmed.

The application was captioned as a "motion to seek post conviction relief to withdraw plea and to proceed to trial and for appointment of counsel."

(continued)

(continued)

10

A-4316-03T4

January 6, 2006