STATE OF NEW JERSEY v. LEON ZIMMERMAN

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3100-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEON ZIMMERMAN,

Defendant-Appellant.

________________________________________________________________

November 19, 2010

 

Submitted September 14, 2010 - Decided

 

Before Judges Carchman, Graves and Messano.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-02-0387, 00-02-0397 and 00-09-2404.

 

Yvonne Smith Segars, Public Defendant, attorney for appellant (Nathaniel Jones, Designated Counsel, of counsel and on the brief).

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Leon Zimmerman appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). In his PCR, defendant claimed ineffective assistance of counsel because of the failure of counsel to advise him regarding the issue of jail credits. The judge determined that the PCR raised issues that were properly the subject of a direct appeal and further, that the PCR was untimely. We affirm and also conclude that based on the record before us, defendant was not entitled to the claimed jail credits as a matter of law.

The relevant facts are simply stated. On September 6, 1999, defendant committed an armed robbery while using a knife. Eleven days later, on September 17, 1999, defendant, brandishing a knife, threatened a second victim and robbed him as well (offenses collectively referred to as "the 1999 offenses"). At the time of these offenses, defendant was on parole for prior robbery convictions. A parole detainer was lodged against him on September 21, 1999, the date of defendant's arrest for the 1999 offenses.

Subsequently, an Essex County grand jury returned four indictments against defendant, the first charging him with two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4a; one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5a. A second indictment charged defendant with first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. A third indictment charged defendant with one count of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, while the fourth charged him with one count of first-degree robbery, N.J.S.A. 2C:15-1; one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and one count second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a.

In May 2000, defendant pled guilty to first-degree robbery and third-degree possession of a weapon for unlawful purposes, which was amended to a fourth-degree offense. The judge sentenced defendant to an aggregate imprisonment term of fifteen years with an eighty-five percent disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6c. Appropriate fines and penalties were also imposed.

On October 20, 2000, defendant pled guilty to one count of first-degree robbery and one count of second-degree possession of a weapon for unlawful purposes, which was amended to a fourth-degree offense. The sentencing judge imposed an aggregate, fifteen-year sentence of imprisonment with an eighty-five percent disqualifier and five years of parole supervision following his release. Appropriate fines and penalties were also imposed. On the same date, defendant also pled guilty to one count of first-degree robbery and one count of third-degree possession of a weapon for unlawful purposes and sentenced to an aggregate term of fifteen years subject to an eighty-five percent disqualifier. All other charges were dismissed, and the sentences imposed were to be served concurrently to one another and concurrently to sentences imposed for federal offenses by the United States District Court as well as the sentence defendant was to serve for violation of his parole. At the time of sentencing, the judge stated in defendant's presence: "There's one day of jail credit."

Defendant did not file a direct appeal, but in November 2007, seven years after the entry of the judgment of conviction, defendant filed the PCR. The judge denied the PCR, and this appeal followed.

On appeal, defendant raises the following issues:

POINT 1

A Procedural Bar to Zimmerman's PCR Petition Was A "Fundamental Injustice" Because of The Jail Credit Sentence, Plain Error Not Raised Below

 

 

POINT 2

 

The Judge's Failure to Make a Record of Zimmerman's Understanding of Jail Credit Law Violated His Due Process Rights Under The Federal And State Constitutions, Plain Error Not Raised Below

 

POINT 3

 

Zimmerman's Guilty Plea Was Not A Waiver Of His Right to Challenge Jail Credits, It Was Plain Error to Deny His PCR Petition Based on a Procedural Bar, Not Raised Below

 

POINT 4

 

Zimmerman Was Denied A Fair Criminal Process Because He Was Not Told the Exact Consequences Of His Guilty Plea, Plain Error Not Raise [sic] Below

 

 

POINT 5

 

As A Matter of Law Zimmerman Was Entitled To Jail Credits For Time Served In Custody And On Parole, It Was Plain Error To Find Only One Jail Credit, Not Raised Below

 

POINT 6

 

Zimmerman Was Denied His Reasonable Expectations Under His Plea Agreement That Failed The Essential Purpose Of Fairness; Withdrawal of The Please Should Be Granted, Plain Error Not Raised Below

 

POINT 7

 

The Court Record Shows That Defense Counsel, The Judge and Prosecution Never Gave Zimmerman An Understanding of The Law Related To Jail Credits, Plain Error Not Raised Below

 

POINT 8

 

A. Due To The Deficiencies In Zimmerman's Legal Counsel's Defense He Was Denied Effective Assistance Of Counsel And His Constitution [sic] Rights Were Violated

 

B. It Was Plain Error To Find Zimmerman's Counsel Performed As Counsel Guaranteed By The Sixth Amendment

 

C. Ineffective Assistance of Counsel Denied Zimmerman The Right to A Fair Trial, Plain Error Not Raised Below

 

D. Zimmerman Satisfied The Two Prong Test For Showing Ineffective Assistance of Counsel

 

E. But For Zimmerman's Counsel's Performance It Was Reasonably Probable The Result Of The Proceeding Would Have Been Different

 

F. Zimmerman's Counsel's Inadequate Investigation Of The Law and Facts Related to Jail Credits Dispels Any Presumption Of Competence, Plain Error Not Raised Below

 

 

POINT 9

 

A. It Was Plain Error To Deny The PCR Relief Based on Failure to Raise It On Direct Appeal, Constitutional Grounds Were Shown, Not Raised Below

 

B. Zimmerman's plea constituted An Illegal Sentence in Violation of the Constitution

 

C. Zimmerman's Right to Remain Silent and To Effective Assistance of Counsel Was Violated By The Entry of His Guilty Plea, Plain Error

 

D. The Statutory Policy Related To Jail Credits Was Violated By The Prosecutor's Failure To Correct The Court's Decision of One Jail Credit, Plain Error Not Raised Below

 

E. The Court's Sentence Failed to Apply A Mitigating Factor That Was Supported by Credible Evidence; It Was Unfair, Unreasonable And Against the Interest Of Justice, Plain Error Not Raised Below

 

Distilling defendant's arguments to their essence, the critical issues are whether defendant's claim that he was entitled to 3831 days of jail credit is cognizable in his belated PCR and more specifically, whether the record supports any claim that he was entitled to these credits in the first instance.

We first address the PCR. Defendant argues that the failure of his counsel to inform him that he was only entitled to one day of jail credit amounted to ineffective assistance of counsel. Aside from claiming that he is entitled to jail credits as a matter of law, he faults counsel's failure to discuss the issue with him asserting that it impacted on his decision to enter the plea.

The State counters that the issue of jail credit could have been raised at the time of the plea, when the agreement was placed on the record, or at the time of sentencing. As defendant could have appealed the issue of jail credits previously, he is now barred from raising it in a PCR petition. The State also argues that defendant's argument lacks substantive merit. Because the sentencing judge sufficiently discussed the particulars of defendant's sentence before entering the guilty plea, the State asserts that the plea was valid.

We again note that at the time of the imposition of sentence, the judge enunciated the extent of the jail credit as being one day, and no appeal or issue was raised by defendant. We also note that while complaining that counsel failed to discuss the jail credit issue with him, defendant, in his pro se PCR brief, stated:

As part of the plea agreement, counsel and the court informed defendant he would receive more than 380 days jail credit, dating back to his arrest date of 9/21/1999. He agreed to plead guilty under the impression that he would be eligible for parole in approximately 11 years 8 months. . . .

 

Neither plea transcript supports this statement nor is there any reference to jail credits by the judge or counsel other than the award of one day during sentencing.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, 693 (1984). To obtain relief based upon a claim of ineffective assistance of counsel, defendant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, an ineffective assistance of counsel claim is established upon proof that the representation is both deficient and prejudicial to the defendant. Counsel's performance is deficient if it falls "below an objective standard of reasonableness." State v. Martini, 160 N.J. 248, 264 (1999) (quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693). The defective performance is prejudicial if "there is 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 694, 104 S. Ct. at 2068, 80 L. Ed 2d at 698. The Strickland two-prong standard was adopted by the Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Castagna, 187 N.J. 293, 313 (2006); State v. Allegro, 193 N.J. 352, 366 (2008). Martini, supra, 160 N.J. at 265 (all holding that the Strickland two-pronged test applies in New Jersey).

The Strickland test has been applied to challenges to guilty pleas. State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). To set aside a guilty plea based on the ineffective assistance of counsel, defendant must demonstrate that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" Id. at 457 (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). Defendant also must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

Even if we were inclined to consider the merits of defendant's PCR, two procedural restrictions bar such review.

A petition for PCR is not a substitute for a direct appeal. R. 3:22-3. Defendant is procedurally barred from raising grounds for relief in his PCR if he or she failed to raise the issue on appeal unless: a) it could not reasonably have been asserted in the proceeding; b) enforcement of the procedural bar would result in fundamental injustice; or c) denial of relief would result in a constitutional violation. In the context of a guilty plea, while normally a plea of guilt waives all procedural objections, a guilty plea may be challenged later in a PCR on the grounds that there was no factual basis see State v. Barboza, 115 N.J. 415 (1989), or that defendant was unaware of its penal consequences, see State v. Kovack, 91 N.J. 476 (1982).

Here, the PCR judge found:

Inasmuch as in this case the defendant['s] claims . . . are barred for failure to cite specific facts demonstrating the delay, the defendant's application for post-conviction relief is denied.

. . . .

 

As to the instant matter: A, this issue could have been raised on direct appeal, however no appeal was taken; B, exceptional circumstances have not been shown to support the allegation of fundamental injustice . . .; and three, there's no showing by the defendant in this case that his constitutional rights under the federal or state constitutions have been seriously infringed, State v. Trantino, 60 N.J. 176 (1972).

 

Defendant argues without explanation that his ignorance of jail credits until recently and the invalidity of his guilty plea rise to the level of a violation of his due process rights and creation of an illegal sentence, excepting his case from the limitations of Rule 3:22-4.

In State v. Mitchell, 126 N.J. 565 (1992), the Court stated:

under some extraordinary circumstances, a court's improper acceptance of a guilty plea may constitute an illegal sentence within the meaning of Rule 3:22-12. For a guilty plea to be illegal in that sense, however, its acceptance must implicate constitutional issues . . . As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own.

 

[Id. at 577 (citations omitted).]

The failure to discuss jail credits until sentencing does not constitute a violation of constitutional dimensions, which warrants a relaxation of the PCR rules. We deem it irrelevant that defendant, as he now claims, only recently became aware that he might have been entitled to more than one day of jail credit. He has not demonstrated how his decision to plead guilty would have been influenced by such knowledge; moreover, his earlier assertion that he was advised of the jail credits by the judge and counsel is contrary to his now-argued position. More significantly, he was present at sentencing when he was advised as to the one-day jail credit. The issue should have been raised on a direct appeal.

The rules further provide that a PCR is barred if filed more than five years after entry of the judgment of conviction. R. 3:22-12. Here, the judgments were entered on October 20, 2000, and the PCR application was not filed until November 2007, more than seven years after entry of the judgment. Even if defendant's petition was not procedurally barred for failure to raise issues on direct appeal, it was untimely. Moreover, defendant offers nothing substantive to support an extraordinary circumstances relaxation of this bar.

Finally, we briefly address the relevant law regarding the awarding of jail credits. Defendants "shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." R. 3:21-8. In State v. Carreker, 172 N.J. 100, 115 (2002), the Supreme Court held that, generally, jail credit applies to confinement attributable only to the offense that gave rise to the sentence. While "[n]either the Criminal Code nor the Rules address the propriety or permissibility of giving an inmate jail credit against more than one sentence[,] . . . New Jersey courts have adopted a negative view of that practice." State v. Black, 153 N.J. 438, 456-57 (1998). See also State v. Harvey, 273 N.J. Super. 572, 575 (App. Div. 1994) (noting that "Duplicate or double credits should not be given.") See also Lipschitz v. State, 43 N.J. Super. 386, 389 (App. Div. 1957).

When defendant was arrested for the 1999 offenses on September 21, 1999, he was on parole for the 1994 robbery convictions. A parole detainer was lodged against him on September 21, 1999, following his arrest, as he was in violation of his parole by committing the 1999 offenses. N.J.S.A. 30:4-123.59(b).

A parole detainer impacts defendant's entitlement to jail credits. As the Court has held:

[W]hen a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release. If the parole warrant is thereafter withdrawn or parole is not revoked, and the defendant is convicted and sentenced on new charges based on the same conduct that led to the initial parole warrant, then jail time should be credited against the new sentence. If parole is revoked, then the period of incarceration between the parolee's confinement pursuant to the parole warrant and the revocation of parole should be credited against any period of reimprisonment ordered by the parole board.

 

[Black, supra, 153 N.J. at 461.]

Where a parolee commits a separate offense, the criminal prosecution for that offense and the parole proceeding for the parole violation are independent proceedings even though they may be based on the same conduct. "As long as the warrant is lodged, a parolee cannot be released. Thus the confinement is attributable to the original sentence. If the warrant is withdrawn or parole is not revoked and the defendant is not returned to custody, then jail time is credited against the new sentence." State v. Harvey, 273 N.J. Super. 572, 576 (App. Div. 1994).

Here, defendant has offered nothing to suggest that the parole warrant was withdrawn. Ultimately, defendant pled guilty to a parole violation and was sentenced accordingly. The only mention of defendant's parole was his disposition record of September 23, 1999, listing defendant's status as "PAROLEE HOLD PENDING." A police report dated September 22, 1999, stated that defendant was "presently in the custody of the Essex County jail for a parole violation and was subsequently charged for numerous robberies." The available record demonstrates that defendant's confinement was attributable to his parole violation and not to his 1999 offenses. As a matter of law, defendant is not entitled to have the 383 days of incarceration credited to his conviction on the present offenses to which he pled guilty. The judge correctly awarded defendant one day of jail credit.

The judge ordering the sentences to run concurrently does not impact the result. Merging the sentences does not indicate an intention to apply the jail credits from confinement under the parole warrant to the 1999 offenses.

We have carefully reviewed defendant's remaining arguments and conclude that they are without merit. R. 2:11-3(e)(2).

Affirmed.

1 At various points of his presentation, defendant refers to 380 days as well as 383 days. The disparity does not impact on our decision.