STATE OF NEW JERSEY v. DARRYL JOHNSON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5201-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRYL JOHNSON,
Defendant-Appellant.
_______________________________
Submitted April 13, 2010 Decided May 12, 2010
Before Judges Fuentes and Gilroy.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 04-02-0385.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Celeste Dudley-
Smith, Designated Counsel, of counsel and on
the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Kenneth
P. Ply, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Darryl Johnson appeals from the November 1, 2007
order that denied his petition for post-conviction relief (PCR).
We reverse and remand for further proceedings consistent with
this opinion.
On February 9, 2004, an Essex County Grand Jury charged
defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2)
(count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3)
(count two); first-degree robbery, N.J.S.A. 2C:15-1 (count
three); third-degree unlawful possession of a weapon (a
handgun), N.J.S.A. 2C:39-5b (count four); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4a (count five); and second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count nine). Co-
defendants Ahmad Hagler and Michael Lattimore were also charged
with various offenses in the same indictment.
On June 28, 2004, a jury found defendant guilty of second-
degree burglary and third-degree possession of a controlled
dangerous substance, along with other related charges, under
Morris County Indictment Nos. 03-02-0188 and 03-09-1055. On
September 1, 2004, the trial court sentenced defendant on his
convictions under the Morris County indictments to an aggregate
term of seven years of imprisonment with an 85% period of parole
ineligibility, pursuant to the No Early Release Act (NERA),
2C:43-7.2, and to a three-year period of parole
N.J.S.A.
supervision upon release. At time of sentencing, defendant
A-5201-07T4
2
received 632 days of jail credit on Indictment No. 03-02-0188
and three days of jail credit on Indictment No. 03-09-0155.
On February 3, 2005, defendant entered into a negotiated
plea agreement to the lesser-included offense of first-degree
aggravated manslaughter on count one, N.J.S.A. 2C:11-4a, and on
counts four and nine, in exchange for the State recommending an
aggregate term not to exceed fifteen years of imprisonment with
an 85% period of parole ineligibility pursuant to NERA. The
State also agreed to recommend that the sentences run concurrent
with the sentences defendant was then serving on the Morris
County convictions.
On April 1, 2005, the trial court sentenced defendant in
accordance with the plea agreement. On count one, the court
sentenced defendant to a fifteen-year term of imprisonment,
subject to an 85% period of parole ineligibility pursuant to
NERA, and to a five-year term of parole supervision upon
release; on count four, to a five-year term of imprisonment; and
on count nine, to a ten-year term of imprisonment, subject to an
85% period of parole ineligibility pursuant to NERA, and to a
three-year term of parole supervision upon release. Defendant
also received 341 days of jail credit and 212 days of gap-time
credit. The court ran the sentences concurrent with each other
A-5201-07T4
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and with the sentences defendant was then serving on the Morris
County convictions.
Defendant appealed his sentences as excessive. We affirmed
in an appeal heard on the excessive-sentence calendar. State v.
Johnson, No. A-6226-05 (February 6, 2007).
On February 2, 2007, defendant filed a pro se petition for
PCR, contending that he was denied effective assistance of trial
counsel because his attorney incorrectly advised him at the plea
proceeding that the jail and gap-time credits would reduce his
period of parole ineligibility on count one: "[C]ounsel
misrepresented to defendant the actual jail credits he would
receive by pleading guilty, and those misrepresentations are
causing defendant to serve three more years than he expected to
serve." In support of his petition, defendant submitted his
certification stating that his trial attorney had assured him
that he was going to receive 975 days of jail credit, and that
the 975 days "would come off the 85% of 15 years."
On November 1, 2007, the trial court entered an order
supported by an oral decision denying the petition without an
evidentiary hearing, determining that the issue whether
defendant should have additional jail or gap-time credits
applied against the NERA portion of his sentence rested with the
State Parole Board, not the trial court.
A-5201-07T4
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On appeal, defendant argues:
POINT I.
DEFENDANT-APPELLANT WAS DENIED HIS
CONSTITITIONAL RIGHTS TO EFFECTIVE
ASSISTANCE OF COUNSEL ([U.S. Const., Amends.
VI and XIV; N.J. Const. (1947), Art. I, ¶
10]). THEREFORE, THE COURT SHOULD GRANT THE
MOTION FOR POST-CONVICTION RELIEF.
IN THE ALTERNATIVE, BECAUSE THE DEFENDANT-
APPELLANT HAS PRESENTED AT LEAST PRIMA FACIE
PROOF THAT HE HAD BEEN DEPRIVED OF THE
EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT
SHOULD GRANT HIM AN EVIDENTIARY HEARING ON
THE ISSUE.
(A) TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO ADVISE DEFENDANT-APPELLANT
THAT HIS GAP-TIME CREDIT OF 212 DAYS
COULD NOT BE APPLIED TO REDUCE THE 85%
PERIOD OF PAROLE INELIGIBILITY MANDATED
BY [NERA].
(B) TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO ADVISE DEFENDANT-APPELLANT
THAT HIS JAIL-TIME CREDIT OF 976 DAYS
COULD NOT BE APPLIED TO REDUCE THE 85%
PERIOD OF PAROLE INELIGIBILITY MANDATED
BY [NERA].
POINT III.
THE TRIAL COURT ERRED BY FAILING TO ENSURE
THAT THE DEFENDANT'S GUILTY PLEA WAS MADE
WITH KNOWLEDGE OF THE DIRECT OR PENAL
CONSEQUENCES OF THE PLEA.
The decision whether to conduct an evidentiary hearing on a
claim of ineffective assistance of counsel rests primarily on
the trial court's determination whether a defendant has made a
prima facie showing of the claim. State v. Preciose, 129 N.J.
A-5201-07T4
5
451, 462 (1992). Rule 3:22-1 does not require that an
evidentiary hearing be granted in every PCR proceeding. Ibid.
Where a "court perceives that holding an evidentiary hearing
will not aid the court's analysis of whether the defendant is
entitled to post-conviction relief, . . . or that the
defendant's allegations are too vague, conclusory, or
speculative to warrant an evidentiary hearing, . . . then an
evidentiary hearing need not be granted." State v. Marshall,
148 N.J. 89, 158 (internal citations omitted), cert. denied,
522 U.S. 850,
118 S. Ct. 140,
139 L. Ed. 2d 88 (1997).
Claims of ineffective assistance of counsel are governed by
the standards set forth in Strickland v. Washington.1 See State
v. Fritz,
105 N.J. 42, 58 (1987) (holding the precepts of
Strickland have been adopted by New Jersey). For a defendant to
establish a prima facie case of ineffective assistance of
counsel under Strickland, the defendant must show that defense
"counsel's performance was deficient," and that "there exists 'a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.'" Preciose, supra,
129 N.J. at 463-64 (quoting
Strickland, supra,
466 U.S. at 694;
104 S. Ct. at 2068,
80 L.
1
Strickland v. Washington,
466 U.S. 668, 687,
104 S. Ct. 2052,
2064,
80 L. Ed. 2d 674, 693 (1984).
A-5201-07T4
6 Ed. 2d at 698); see also State v. Allegro,
193 N.J. 352, 366
(2008).
The trial court ordered that the sentences imposed on the
Essex County convictions are to run concurrent to each other and
to the sentences imposed on the Morris County convictions. As
such, the Morris County sentences merged in and will be
satisfied by the discharge of the Essex County sentences.
N.J.S.A. 2C:44-5e(1) (providing that "[w]hen terms of
imprisonment runs concurrently, the shorter terms merge in and
are satisfied by discharge of the longest term").
Jail credits are governed by Rule 3:21-8. That rule
provides in pertinent part that "[t]he defendant shall receive
credit on the term of a custodial sentence for any time served
in custody in jail . . . between arrest and the imposition of
sentence." R. 3:21-8. By its own terms, "[t]he credit
requirements of the rule are mandatory." Pressler, Current N.J.
Court Rules, comment on 1.
1 R. 3-21.8 (2010). Generally, jail
credits are "only allowable for a period of incarceration
attributable to that crime and hence time spent in custody on
other charges is not subject to credit." Ibid. Because under
the rule jail credits are applied to the front end of a
sentence, Booker v. N.J. State Parole Bd.,
265 N.J. Super. 191,
207 (App. Div. 1993), aff'd,
136 N.J. 257 (1994), the defendant
A-5201-07T4
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is entitled to have jail credits applied to periods of parole
ineligibility imposed on a conviction. State v. Grate,
311 N.J.
Super. 456, 459 (App. Div. 1998).
Gap-time credit is provided by statute. N.J.S.A. 2C:44-5b.
Gap-time credit must be awarded to a defendant on a showing of
the following three criteria: "(1) the defendant has been
sentenced previously to a term of imprisonment, (2) the
defendant is sentenced subsequently to another term, and (3)
both offenses occurred prior to the imposition of the first
175 N.J. 456, 462 (2003).
sentence." State v. Franklin,
However, contrary to jail credits awarded pursuant to court
rule, gap-time credits may not be used "to reduce a judicial or
statutory parole bar by a 'front-end' reduction of the
Richardson v. Nickolopoulos, 110 N.J.
aggregated sentences."
241, 254-55 (1988). Accordingly, gap-time credits may not be
applied to reduce the 85% period of parole ineligibility
Meyer v. N.J. State Parole Bd., 345 N.J.
mandated by NERA.
Super. 424, 429 (App. Div. 2001), certif. denied,
171 N.J. 339
(2002).
Defendant did not argue in the trial court, and does not
argue on appeal, that he is entitled to have the 212 days of
gap-time credit applied against the base term on his sentence on
count one; nor that he did not receive 635 days of jail credit
A-5201-07T4
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against the sentences imposed on the Morris County convictions.
Rather, defendant contends that trial counsel misrepresented to
him that all of those credits would be applied against the
period of parole ineligibility on count one, thereby reducing
his overall period of parole ineligibility by approximately
three years. Defendant asserts that had he known those credits
could not be used to reduce the period of parole ineligibility
on count one he would not have pled guilty to the NERA offense.
Rule 3:9-2 governs the taking of pleas; in particular, it
mandates that a court not accept a guilty plea to a criminal
charge without first "determining by inquiry of the defendant
and others, in the court's discretion, that there is a factual
basis for the plea and that the plea is made voluntarily . . .
and with an understanding of the nature of the charge and the
consequences of the plea." "The specificity and rigor embodied
in Rule 3:9-2 manifest a systemic awareness that a defendant
waives significant constitutional rights when pleading guilty,
which places an affirmative obligation on a court to reject a
plea of guilty when that court is not independently satisfied
that the Rule's prerequisites are met." State ex rel. T.M.,
166 N.J. 319, 326 (2001).
In determining whether a defendant understands the
consequences of his or her plea, "the court must ensure that
A-5201-07T4
9
defendant [has been] informed of the direct penal consequences
of the plea, generally, those relating to sentencing."
Pressler, Current N.J. Court Rules, comment 1.4.1 on R. 3:9-2
(2009). A court must inform a defendant of the maximum
custodial sentence and fine that may be imposed for the offense
to which he or she is pleading before the court accepts the
plea. State v. Johnson,
182 N.J. 232, 241 (2005) ("hold[ing]
that being subject to NERA's mandatory period of parole
supervision constituted a direct, penal consequence of [a]
defendant's plea," entitling the defendant to seek vacation of
the plea); State v. Kovack,
91 N.J. 476, 481-84 (1982) (vacating
a defendant's sentence and remanding on the ground that the
defendant had not been informed of his exposure to a period of
parole ineligibility as part of his sentence prior to entering
his or her guilty plea). See also Sheil v. N.J. State Parole
Bd.,
244 N.J. Super. 521, 528 (App. Div. 1990) (stating that a
defendant's misunderstanding of the amount of gap-time credits
he was entitled to receive "may affect his understanding of the
maximum time he will serve under a plea agreement"), appeal
dismissed,
126 N.J. 308 (1991).
Here, the trial court did not address defendant's argument
that trial counsel had misrepresented the amount of jail and
gap-time credits that were to be applied against the NERA period
A-5201-07T4
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of parole ineligibility imposed on count one. Indeed, as we
understand defendant's argument, trial counsel misrepresented to
him that the jail credits he received on the Morris County
convictions and the gap-time credits he received on the Essex
County convictions would be applied against the period of parole
ineligibility on count one because the sentences were to run
concurrent with each other. Defendant contends that he would
not have pled guilty to a NERA offense if he had been informed
otherwise. Because the trial court did not address that issue
and the record does not contain sufficient information to flesh
out what information defendant received from his trial counsel,
we reverse and remand for the court to conduct an evidentiary
hearing.
Reversed and remanded. We do not retain jurisdiction.
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