STATE OF NEW JERSEY v. GARY PRICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5814-07T45814-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY PRICE,

Defendant-Appellant.

_________________________

 

Submitted August 12, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 98-03-1419, 98-03-1027 and 98-01-0166.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gary Price appeals from the April 23, 2008 order of the trial court denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

In 1998, defendant was charged in three Essex County indictments with nine third-degree drug-related offenses, third-degree unlawful possession of a weapon and fourth-degree resisting arrest. On August 3, 1998, defendant entered into a negotiated plea agreement whereby he pled guilty to three counts of third-degree possession of cocaine with intent to distribute within 1000 feet of school property and to the weapon and resisting arrest charges. The State agreed to recommend a maximum sentence of four concurrent three-year terms with an eighteen-month parole ineligibility period on the third-degree offenses, and a concurrent eighteen-month term on the fourth-degree offense. The remaining counts were dismissed.

At the time of his plea, defendant was on probation for a third-degree eluding conviction. Defendant acknowledged that his convictions resulting from this plea would constitute a violation of his probation.

During his plea hearing, the judge advised defendant:

This is a third[-]degree offense, it carries the maximum penalty of five years, three years without eligibility for parole. And for each successive one, you could be subject to imprisonment for an extended term, mandatory extended term, which could mean ten with five on the later offenses.

On September 10, 1998, defendant appeared before the trial judge on the violation of his probation and was remanded into custody without bail. On the following day, the judge terminated defendant's prior probation and sentenced him in accordance with his plea bargain.

On March 31, 1999, defendant was charged in a federal indictment with possession of a weapon by a previously convicted felon, 18 U.S.C. 922(g)(1), and distribution or possession of cocaine with intent to distribute, 21 U.S.C. 841(a)(1). Tried to a jury, defendant was convicted of both charges on May 21, 1999. The federal judge sentenced defendant as a "career offender," pursuant to 18 U.S.C. app. 4B1.1 (2007), and imposed an aggregate term of seventeen years and six months in prison; these sentences were made concurrent to defendant's state sentences. Defendant appealed, and on May 3, 2001, the U.S. Court of Appeals for the Third Circuit affirmed defendant's convictions.

Defendant filed a pro se PCR petition on or about April 25, 2007. Counsel was assigned and filed a supplemental certification on April 8, 2008. In his pro se petition, defendant claimed that: (1) his plea was coerced because his attorney did not raise the issue that the police wrongfully harassed and targeted defendant; and (2) his trial attorney was ineffective for failing to advise him that "the fact of accepting the plea of guilty and the subsequent convictions . . . would be used in the future for enhancement factors." Regarding his failure to file a timely PCR petition under Rule 3:22-12, defendant claimed that "years later, [he was] now discovering that [trial counsel]'s misinformation and misrepresentation can only be corrected through [the] remedy of filing a [PCR petition]."

In his supplemental certification, defendant stated that his "state convictions enabled [the federal judge] to find [him] to be a career offender, placing his sentencing range[] between 17 years and 4 months to 21 years and 10 months[,]" and that "[i]f [he] had known that [his] state convictions could be used as an enhancement factor to boost any future sentence, [he] would not have chosen to plead guilty, and would instead have gone to trial."

In his written decision denying relief, the PCR judge first noted that defendant had failed to file his petition within the five-year time limit set in Rule 3:22-12. Notwithstanding that deficiency, the judge proceeded to "address [defendant's] substantive argument[,]" stating: "In State v. Wilkerson . . ., the Appellate Division ruled that the failure of defense counsel to advise . . . defendant that his convictions could be used for future penalty enhancement does not amount to ineffective assistance of counsel."

On appeal, defendant raises the following arguments for our consideration:

POINT I

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO DEFENSE COUNSEL'S FAILURE TO ADVISE DEFENDANT AT THE TIME HE ENTERED HIS GUILTY PLEA THAT HIS CONVICTION COULD BE A BASIS FOR ENHANCED PENALTIES IN THE EVENT OF ANY FUTURE OFFENSES

POINT II

THE PCR COURT ERRED IN HOLDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PRECLUDED BY THE FIVE[-]YEAR TIME [LIMIT] OF RULE 3:22-12

POINT III

THE PCR COURT SHOULD HAVE GRANTED DEFENDANT AN EVIDENTIARY HEARING ON THE MERITS OF HIS PETITION

POINT IV

DEFENDANT'S PCR PETITION SHOULD HAVE BEEN GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF HIS PETITION

Having considered these contentions in light of the record and the controlling legal principles, we conclude that they are without merit. We add only the following comments.

We note initially that defendant's second argument -- that the PCR judge erred in imposing the five-year time limit in Rule 3:22-12 -- completely ignores the fact that notwithstanding the judge's comment on this point, he proceeded to decide defendant's claim on the merits. This point warrants no further discussion. R. 2:11-3(e)(2).

Furthermore, we concur with the PCR judge that our decision in State v. Wilkerson, is dispositive of defendant's ineffective assistance of counsel claim. Defendant concedes that "[t]he facts of Wilkerson are indeed similar to those in the instant case." There, we concluded that

the fact that [the defendant]'s defense attorneys did not advise [the defendant] of possible or even potential enhancement consequences of future aberrant conduct is not ineffective assistance of counsel. There is no constitutional requirement for such advice. It involves only a collateral issue. A rule requiring such advice would implicate speculation. Nor is the judge required to independently give such information to a defendant. Aside from the fact that [the defendant] has not established either prong of the test for ineffective assistance of counsel . . . , his argument runs counter to the philosophy . . . that "no particular set of detailed rules" should govern counsel's conduct.

[Id. at 227-28 (citations omitted).]

Defendant contends that Wilkerson "should be reconsidered by this [c]ourt[,]" particularly in light of State v. Bellamy, 178 N.J. 127 (2003), in which the Supreme Court held as a matter of "fundamental fairness" that a defendant who enters a guilty plea to an offense that could potentially subject him/her to civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA), is entitled to be advised of that consequence at the time of the plea. Id. at 131. Defendant asserts that "[i]n both cases, information as to the possibility of enhanced future penalties resulting in a longer period of confinement would have been highly material to the defendant's decision whether to enter the plea."

In Bellamy, the Court recognized, in light of the provisions of the SVPA, that "the consequence of a plea [to a predicate offense] may be so severe that a defendant may be confined for the remainder of his or her life," and therefore, "fundamental fairness demands that the trial court inform defendant of that possible consequence." Id. at 139. Notwithstanding the Court's conclusion that such a consequence is "collateral" rather than "direct," Bellamy's protection is premised upon the recognition of the potentially devastating impact of civil commitment on a defendant's liberty interest. Id. at 138. In other words, the Court carved out a limited exception to the general rule that a defendant need not be advised of all collateral consequences of pleading guilty in order to enter a knowing and voluntary plea. Id. at 142.

As noted in Wilkerson, supra, 321 N.J. Super. at 223, "generally individuals should be aware as a matter of common sense that a continuing course of anti-social or criminal conduct may lead to increased penalties . . . ." Here, defendant in fact received such advice from the trial judge who, at the time defendant entered his pleas, informed him that "for each successive [offense], [he] could be subject to imprisonment for a[] . . . mandatory extended term . . . ." Clearly, defendant was on notice that his 1998 convictions could lead to enhanced penalties for any future convictions.

Defendant next argues that he should be granted relief for the reasons set forth in his pro se petition. There, defendant raised additional claims of ineffective assistance for counsel's failure to investigate his assertion that he was innocent of the charges, and that the police had "stalked and harassed" him. Defendant has failed, however, to provide any supporting documentation, such as certifications from witnesses who, he claims, "would have testified" to such facts.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's "performance was deficient." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's "deficient performance prejudiced [his] defense." Ibid.

The Strickland test applies to challenges to guilty pleas based upon the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

Here, defendant failed to meet these standards; he did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. Therefore, he was not entitled to a plenary hearing on his claims. State v. Preciose, 129 N.J. 451, 464 (1992).

Affirmed.

321 N.J. Super. 219 (App. Div.), certif. denied, 162 N.J. 128 (1999).

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A-5814-07T4

August 27, 2009