STATE OF NEW JERSEY v. MUHAMMAD IRVING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1094-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MUHAMMAD IRVING, a/k/a

BRIAN IRVING,

Defendant-Appellant.

_____________________________________________

March 24, 2011

Submitted February 22, 2011 - Decided

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 06-06-0838; 06-12-1659; 06-12-1660; 06-12-1661; 06-12-1674; 06-12-1675; 06-12-1676; 07-01-0034; 07-01-0035; 07-01-0063 and 07-01-0071.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent(Joseph J. D'Onofrio, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Muhammad Irving appeals from an order denying his petition for post-conviction relief (PCR). We now affirm.

Defendant pled guilty to fourteen counts of third-degree burglary and one count of third-degree theft. His burglary spree was attributable to his need for funds to support his drug dependency. Except for one burglary and the theft, the remaining burglaries all involved commercial establishments.

Defendant entered into a plea agreement where he would receive an aggregate sentence of nine years with four years of parole ineligibility. This sentence was to run concurrent with other charges in Essex and Union County. He was sentenced in Essex County a few days before he entered this plea on January 30, 2007, and was scheduled to be sentenced in Union County on February 2, 2007.

At the time of the taking of the plea, the amounts of restitutions for the various burglaries and thefts were placed on the record and were not disputed by defendant. Two of the commercial establishments had not yet presented their restitution claims, but it was anticipated that they would. In fact, those restitution claims were placed on the record at the time of sentencing, and again, there was no dispute as to the amounts. Defendant had been housed at the Essex County Correctional Center on the charges emanating from that county and was transported to Morris County for his court appearances. His attorney, however, did visit him in Essex County during the course of the representation.

At sentencing, Judge Ahto asked defendant if he was related to an Irving who the judge had played football with as a teenager in 1952. It turned out that defendant's father was the same teammate. Judge Ahto indicated that he could not recall having any contact with defendant's father since high school, which was almost fifty-five years ago. No motion to recuse the judge was made.

Judge Ahto sentenced defendant in accord with the plea agreement. He also awarded defendant seventy-eight days of gap-time credit, representing the time from defendant's sentence in Essex County until April 13, 2007, the date of defendant's Morris County sentencing. Defendant was not awarded any jail time credits. Defendant did not appeal from the sentence imposed by the court.

On October 2, 2008, defendant moved for jail credits. That motion was denied by Judge Ahto on March 28, 2008. Judge Ahto denied any credit, indicating that Rule 3:21-8 contemplates jail credits for confinement attributable to the arrest or detention resulting from a particular offense. Since defendant was held in Essex County on the charges there, no basis to award him credit on the charges in Morris County was present. Defendant did not appeal from the order denying jail credits.

On October 2, 2008, defendant filed the present pro se petition for PCR and was assigned counsel to represent him. Defendant claimed that he had been denied effective assistance of counsel. While his petition did not make his argument clear, he contends on appeal that the ineffectiveness related to his attorney's failure to move for a consolidated disposition. He asserts that had he been successful in consolidating the offenses from all three counties into the same county, he would have received the jail credits that he was denied.

Defendant also argues that his attorney had indicated that Judge Ahto was "good on jail credits." Apparently, defendant understood this to mean that he would receive jail credit for all the time that he had been incarcerated, including the imprisonment in Essex County. He argued that he was misinformed prior to the plea agreement, although he was not seeking to withdraw his plea. Rather, he believes that he should be awarded those jail credits as a matter of fairness.

Defendant also asserted that his attorney was ineffective by not calling for the recusal of Judge Ahto who knew his father. Defendant further maintained that the amount of restitution that he was ordered to pay at sentencing differed from the amount agreed to at the time of the plea. He was also not provided with an ability to pay hearing on any restitution amount.

In addressing the issue of the jail credits, Judge Thomas V. Manahan, who heard defendant's petition for PCR, indicated that even if defendant's trial counsel was deficient in his prediction of what credits might be awarded, that deficiency was cured by the subsequent motion seeking such jail credits, which was denied. It was also pointed out that defendant did not seek to withdraw the plea agreement he entered into, noting that he understood the charges against him, the consequences of pleading guilty, and that he was satisfied with the performance of his trial attorney. Judge Manahan also pointed out that defendant did not appeal from either his sentencing or the denial of his jail credit motion.

Judge Manahan also found that there was no basis to move for recusal of Judge Ahto. There was no showing of actual prejudice or any unfairness based on an "objectively reasonable standard," as required by Rule 1:12-1(f). The remoteness of Judge Ahto's relationship with defendant's father in 1952 did not demonstrate any prejudice in a sentencing that was in accord with the plea agreement that defendant voluntarily and knowingly entered into.

Judge Manahan concluded that the amount of restitution was agreed upon, but the ability to pay that amount was not determined. As a consequence, the judge did order an ability to pay hearing, and as a result of that hearing, the court directed that defendant pay restitution beginning one year following his release from prison at a rate of $100 per week or twenty percent of his income, whichever resulted in the lesser amount.

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

POINT I

THE COURT ERRED IN FAILING TO CONSIDER DEFENDANT'S PRO SE ARGUMENT THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR A CONSOLIDATED DISPOSITION.

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS PETITION FOR POST-CONVICTION RELIEF.

A. PCR COUNSEL WAS INEFFECTIVE IN FAILING TO ARGUE THAT TRIAL COUNSEL SHOULD HAVE FILED A MOTION TO CONSOLIDATE ALL THE CASES INTO ONE COUNTY FOR DISPOSITION.

B. PCR COUNSEL WAS INEFFECTIVE IN FAILING TO ARGUE TO THE COURT THAT THE RESTITUTION AMOUNTS MR. IRVING WAS ORDERED TO PAY AT THE TIME OF SENTENCING WERE NOT THE SAME AMOUNTS AGREED TO AND STIPULATED UPON AT THE TIME OF THE PLEA.

POINT III

THE COURT COMMITTED REVERSIBLE ERROR AND MISAPPLIED ITS DISCRETION BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. 1, PAR. 10

A. DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY SHOWING THAT DEFENDANT WAS MISINFORMED PRIOR TO THE PLEA REGARDING THE NUMBER OF JAIL CREDITS HE WOULD RECEIVE AT THE TIME OF SENTENCING.

B. DEFENDANT HAD ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY SHOWING THAT THE RELATIONSHIP BETWEEN THE JUDGE AND DEFENDANT'S FATHER REQUIRED RECUSAL.

POINT IV

THE LOWER COURT ERRED IN FINDING PETITIONER'S CLAIMS WERE BARRED PROCEDURALLY FROM BEING RAISED IN THIS PETITION FOR POST CONVICTION RELIEF BY R. 3:22-5.

A claim for ineffective assistance of counsel has to satisfy the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). A defendant must first establish that his attorney's performance was deficient, falling below an objective standard of reasonableness. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Second, a defendant must establish prejudice by showing that the outcome of the proceeding would be different if counsel had acted differently. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985), the United States Supreme Court extended the two-part test from Strickland to claims where guilty pleas were involved. There, the Supreme Court recognized that an offender has everything to gain and nothing to lose by challenging his attorney's performance. We are satisfied that defendant has not satisfied the test for ineffective assistance.

Defendant's claim that he received erroneous advice from his attorney respecting jail credits is not accurate. According to defendant, all he was told was that Judge Ahto was "good with jail credits." He was not advised that he would receive credit for every day that he was incarcerated. Defendant may have thought he would receive jail credit from the day of his initial arrest on June 6, 2006 to the date of his sentence on April 13, 2007, but that was not what his attorney communicated to him. He did in fact receive gap-time credit from his incarceration in Essex County, credited against that sentence to which the Morris County sentence ran concurrent. We do not see where his attorney's advice was anything other than within the range of competence expected of attorneys in criminal matters. Id. at 56-57, 106 S. Ct. at 369, 88 L. Ed. 2d at 208-09 (applying McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1448-49, 25 L. Ed. 2d 763, 773 (1970)).

Defendant contends that had his attorney sought to consolidate in one county the offenses from all three counties, he would have received the jail credits without question. He blames his attorney for not seeking to move for such consolidation. At the time defendant entered his guilty plea, he had already been sentenced in Essex County and was about to be sentenced in Union County approximately three days after his plea in Morris County. The record does not indicate whether his attorney had any discussions concerning any consolidation or if any of the various prosecuting authorities were interested in pursuing that avenue. What we do know is that all the sentences from the three counties were concurrent with each other so that defendant was not exposed to any additional time because there was no consolidation of charges. Moreover, there is no guarantee that had such an application been made, it would have been successful. Rule 3:25A-1 governs consolidation. It remains a matter of speculation that if such a motion had been brought, it would have been granted.

With regard to the amounts of restitution, two of the commercial establishments, Cottage Delicatessen at 23 South Passaic Avenue in Chatham, and Chatham Shell Gas Station at 111 Main Street, had not provided restitution claims by the time of the plea. It was understood that those were the most recent of the many restitution claims, and the State did not have specific restitution amounts. At the plea hearing, defendant agreed that restitution would be required for these two establishments even though the exact amount was unknown. The State received the figures before sentencing. There was no dispute or objection at the time of sentencing when the amounts of those two commercial establishments were noted on the record. Thus, we do not discern any discrepancy between the amount of restitution charged and that which was agreed to by defendant.

With regard to the claim that defendant's attorney was ineffective for not moving to recuse Judge Ahto based on the judge having known defendant's father from the high school football team, nearly fifty-five years before, we see no basis for the judge's recusing himself from sentencing. There was no prejudice resulting from a sentence that conformed to the plea agreement. We do not see how any evidentiary hearing would have advanced this meritless claim.

Nor do we see any need to have held a hearing on the number of jail credits that defendant expected to receive at the time of sentencing. Defendant made a motion for jail credits approximately a year and one-half after his sentencing before the sentencing judge. Defendant was denied the credits, which indicates that he would not have received any relief. Defendant sought the benefit of these additional credits, but he still insisted on retaining the very favorable plea agreement to which he assented. Defendant was facing thirty-one various counts, which consisted of fourteen counts of third-degree burglary, thirteen counts of third-degree theft, two counts of third-degree attempted burglary, one count of third-degree criminal mischief, and one count of fourth-degree criminal mischief. Through counsel's assistance, defendant was able to package all of these offenses into the fourteen counts for which he entered guilty pleas and limited his jail exposure to an aggregate sentence of nine years with four years of parole ineligibility.

We are satisfied that defendant's PCR petition was properly denied by Judge Manahan.

A