STATE OF NEW JERSEY v. ANTHONY GRIFFITH

This case can also be found at 198 N.J. 474, 968 A.2d 1189.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2260-06T42260-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent.

v.

ANTHONY GRIFFITH,

Defendant-Appellant.

_______________________________________

 

Submitted October 27, 2008 - Decided -

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 98-06-2866; 98-10-4132; 98-11-4409; and Accusation No. 99-09-1076.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Wroblewski, designated counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal arises out of three separate indictments and a criminal accusation. On June 18, 1998, defendant was charged under Indictment No. 98-06-2866 with first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five).

On October 9, 1998, defendant was charged under Indictment No. 98-10-4132 with third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree possession of CDS with intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count four).

On November 5, 1998, defendant was charged under Indictment No. 98-11-4409 with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two); and third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three).

On July 29, 1999, a jury convicted defendant under Indictment No. 98-06-2866 of second-degree aggravated assault (count three), fourth-degree unlawful possession of a weapon (count four), and third-degree possession of a weapon for an unlawful purpose (count five).

On September 3, 1999, defendant was charged in Accusation No. 99-09-1076 with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); first-degree carjacking, N.J.S.A. 2C:15-2 (count four), third-degree possession of a weapon, N.J.S.A. 2C:39-5 (count five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count six).

That same day, defendant pled guilty to the following:

1. Accusation No. 99-09-1076: second-degree aggravated assault (count one), third-degree unlawful possession of a weapon (count two), and first-degree carjacking (count four);

2. Indictment No. 98-10-4132: third-degree possession of CDS with intent to distribute within 1000 feet of school property (count three); and

3. Indictment No. 98-11-4409: third-degree possession of CDS with intent to distribute within 1000 feet of school property (count three).

In exchange for defendant's guilty plea, the State waived its right to seek an extended-term sentence, and agreed to an aggregate sentence of twenty years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed that defendant's sentence on the guilty verdict on Indictment No. 98-09-2866 would be concurrent to his sentence on the carjacking charge.

On October 8, 1999, the trial judge sentenced defendant as follows:

1. Accusation No. 99-09-1076: on count four (first-degree carjacking) to a fifteen-year term of imprisonment with a twelve year, nine month period of parole ineligibility pursuant to NERA and five years of parole supervision upon release; on count one (second-degree aggravated assault) to a concurrent ten-year term of imprisonment with an eight-year, six month period of parole ineligibility; and on count two (third-degree unlawful possession of a weapon) to a concurrent five-year term of imprisonment;

2. Indictment No. 98-10-4132: on count three (third-degree possession of CDS with intent to distribute within 1000 feet of school property) to a concurrent five-year term of imprisonment with a three-year period of parole ineligibility;

3. Indictment No. 98-11-4409: on count three (third-degree possession of CDS with intent to distribute within 1000 feet of school property) to a concurrent five-year term of imprisonment with a three-year period of parole ineligibility; and

4. Indictment No. 98-06-2866 (jury verdict): on count three (second-degree aggravated assault) to a ten-year term of imprisonment with an eight-year, six month period of parole ineligibility and three years of parole supervision upon release; and on count four fourth-degree unlawful possession of a weapon) and count five (third-degree possession of a weapon for an unlawful purpose) to a concurrent five-year term of imprisonment;

Defendant's aggregate sentence was a fifteen-year term of imprisonment with a twelve-year, nine-month period of parole ineligibility. The judge also imposed the appropriate penalties and assessments, and suspended defendant's driver's license for twenty-four months.

Defendant appealed his conviction and sentence. He contended, among other things, that his plea was not made knowingly, intelligently, or voluntarily made. He raised no challenge to the period of parole supervision. We affirmed. State v. Griffith, A-6369-01T4 (App. Div. March 25, 2004), certif. denied, 180 N.J. 454 (2004).

Defendant then filed a petition for post-conviction relief (PCR), contending that he was denied the effective assistance of trial counsel. Relying on State v. Fruedenberger, 358 N.J. Super. 162 (App. Div. 2003), defendant argued that he should have been permitted to withdraw his guilty plea on the carjacking charge in Accusation No. 99-09-1076 because counsel failed to advise him of the five-year period of parole supervision imposed on that charge.

The trial judge denied the petition, finding that defendant should have raised this argument on direct appeal. The judge also found no prejudice because withdrawal of the guilty plea would subject defendant to a much longer term of imprisonment, and to a much longer period of parole ineligibility.

On this appeal, defendant raises the following contentions:

POINT I THE PCR COURT ERRED BY NOT DECIDING

THE MERITS OF DEFENDANT'S PCR MOTION

AS REQUIRED BY R. 3:22-11.

POINT II THE PCR COURT ERRED IN DENYING DEFENDANT'S

PETITION BECAUSE DEFENDANT WAS DENIED

EFFECTIVE ASSISTANCE OF COUNSEL AS HIS

TRIAL ATTORNEY FAILED TO INFORM HIM OF THE

PAROLE REQUIREMENTS OF THE N.E.R.A.

We reject these contentions and affirm.

Prior to filing his direct appeal, defendant knew that he had not been advised of the five-year supervision period mandated by NERA. He also knew that Fruedenberger provided him relief. Thus, he could and should have raised this issue on his direct appeal. Issues that could have been, but were not, raised on direct appeal cannot be raised on post-conviction relief. R. 3:22-4; State v. Mitchell, 126 N.J. 565, 585 (1992). Thus, there are no grounds for post-conviction relief. State v. Preciose, 129 N.J. 451 (1992).

Nevertheless, we address the merits of defendant's contention. In order for defendant to vacate his plea based on lack of knowledge of the penal consequences of the plea, he must show: (1) that this penal consequence was material to his decision to plead guilty; and (2) that he was prejudiced. State v. Johnson, 182 N.J. 232, 241 (2005). The court will not vacate a plea "if knowledge of the consequences would not have made any difference in the defendant's decision to plead." State v. Howard, 110 N.J. 113, 123 (1988). After sentencing, the court will only vacate a plea "'to correct a manifest injustice.'" Id. at 124 (quoting R. 3:21-1).

Here, defendant has failed to show that he would have rejected the plea had he known about the mandatory NERA period of parole supervision. He also has shown no prejudice. Unlike the defendant in Fruedenberger, defendant was charged with multiple offenses under separate indictments and the accusation. If convicted of those charges, defendant faced a term of imprisonment, a NERA disqualifier and a mandatory NERA period of parole supervision well in excess of what he received under the plea agreement. In fact, on the carjacking charge alone, defendant faced a thirty-year term of imprisonment. N.J.S.A. 2C:15-2b. Clearly, knowledge of the mandatory NERA period of parole supervision would have made no realistic difference here. There was no manifest injustice nor ineffective assistance of counsel.

Affirmed.

Defendant is presently eligible for parole in 2011.

(continued)

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A-2260-06T4

December 31, 2008