STATE OF NEW JERSEY v. DARRYL HAMMARY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1153-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRYL HAMMARY, a/k/a

DUANE HAMARY,

Defendant-Appellant.

_______________________________

Submitted March 1, 2011 Decided March 24, 2011

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment Nos.

03-03-0464 and 03-07-1379.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Brian D. Driscoll, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Darryl Hammary appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

On October 15, 2003, defendant pled guilty to count one of Indictment No. 03-03-0464, which was amended to charge the third-degree crime of conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4, in exchange for the State's agreement to recommend a flat five-year prison sentence, as well as dismiss the remaining eleven counts of the indictment. On January 23, 2004, defendant was sentenced in accordance with the negotiated plea agreement to a flat five-year prison term and ordered to pay $1,385.00 in restitution to the victim of the theft.

On June 14, 2004, following denial of his motion to suppress evidence obtained in two searches, defendant pled guilty to three counts of a twenty-three count indictment (Indictment No. 03-07-1379): third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4 (count 1); third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count 16); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count 18), as amended from third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). In exchange for his plea, the State agreed to recommend a sentence of eight years imprisonment with four years of parole ineligibility on count 18, to run concurrent with the sentence defendant was already serving. On October 29, 2004, defendant was sentenced to eight years with a four-year period of parole ineligibility on count 18; a five-year term with a two-year period of parole ineligibility on count 1; and a flat five-year term on count 16. All sentences were to run concurrent. Restitution of $3,596.35 was ordered. The remaining charges were dismissed.

Defendant appealed only his judgment of conviction on Indictment No. 03-07-1379. He contended, among other issues, that he did not knowingly enter his plea because he circled on the plea form the answer "No" to the question of whether he was pleading guilty to a charge that required a mandatory period of parole ineligibility. We rejected this argument, finding:

Here, defendant pled guilty to a Graves Act offense which requires a period of parole ineligibility. The plea agreement and the statements on the record at the plea hearing made abundantly clear that defendant's sentence could include a four-year period of parole ineligibility. Defendant therefore was well aware that the sentence he was facing included a period of parole ineligibility, regardless of the answer he gave to the question on the plea form.

[State v. Hammary, No. A-2919-04T4 (App. Div. June 27, 2006) (slip op. at 19).]

We affirmed defendant's conviction and sentence. Id. at 20.

Thereafter, the Supreme Court granted defendant's petition for certification limited solely to the sentencing issue raised by defendant and summarily remanded the case to the trial court for resentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Hammary, 188 N.J. 571 (2006). On remand, the court imposed the same sentence, finding no new aggravating or mitigating factors and that the original sentence was imposed without any consideration of presumptive terms. There was no appeal from this sentence.

Defendant filed a timely PCR petition, arguing that his sentences under both indictments were illegal because the court failed to consider, and counsel failed to effectively argue, mitigating factor number six, N.J.S.A. 2C:44-1(b)(6) (that "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained"). Defendant also argued that he was entitled to a Natale resentencing under Indictment No. 03-03-0464 because the sentencing court erroneously considered aggravating factors to enhance his sentence above the presumptive term that were not found by a jury. The judge denied defendant's PCR petition, reasoning in part:

In this application, the defendant does not truly argue that his sentences under both indictments were illegal. Rather, defendant argues that his sentences were excessive due to the sentencing court's weighing and application of the aggravating and mitigating factors. However, alleged excessive sentences not otherwise authorized by the Code of Criminal Justice may only be raised on direct appeal from the conviction, and [are] not an appropriate ground for post-conviction relief. [citation omitted]. There is no showing that had the mitigating factor for restitution been applied, defendant would have received lesser sentences, as the court imposed both sentences according to the negotiated plea agreements.

. . . .

Defendant now alleges that trial counsel's performance was "seriously defective [in] ways that materially contributed to defendant's wrongful, illegal, and/or otherwise unconstitutional sentence." Defendant states that both of his trial counsel failed to set forth the specific mitigating factor of a promise of restitution that was clearly present in each case. Had his attorneys done so, defendant contends that his sentences would have been reduced.

As set forth above, defendant's constitutional rights were not violated by the imposition of his sentence, nor were his rights violated upon his resentencing. Defendant fails to suggest that if the mitigating factor for restitution had been applied, how the application of that factor would have affected the specific sentences. This defendant was sentenced according to the plea agreement in each case. Therefore, failure of trial counsel to object to the term of defendant's sentences did not fall below an objective level of reasonableness. Defendant fails to satisfy the burden set forth by Strickland.

. . . .

The defendant is not entitled to resentencing under Natale for two reasons. First, the Natale rule does not apply to defendant's sentence under Indictment Number 03-03-0464 because defendant's case under this Indictment was not on direct appeal as of the date of the Natale decision (August 2, 2005), and defendant did not raise a Blakely claim at trial or on a direct appeal. See Natale, 184 N.J. at 494. In fact, defendant never appealed his sentence under Indictment Number 03-03-0464.[] Thus, defendant's sentence under Indictment Number 03-03-0464 was not "in the pipeline" at the time of the Natale decision. Also, defendant did not raise a Blakely claim at trial since he pled guilty and there was no trial at which defendant could have raised any such claim. Likewise, defendant could not raise a Blakely claim on appeal since no appeal was filed regarding Indictment Number 03-03-0464.

On appeal, defendant raises the following issues:

I. THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING, AND IN DENYING THE PETITION.

II. THE SENTENCE IMPOSED WAS ILLEGAL. (RAISED IN PART BELOW).

III. THE RESENTENCING WAS NOT DONE IN COMPLIANCE WITH STATE V. NATALE, 184 N.J. 458 (2005). (NOT RAISED BELOW).

IV. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL. (NOT RAISED BELOW).

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by the PCR judge in his letter opinion of June 24, 2009. We add, however, the following comments.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiency here clearly fails to meet either the performance or prejudice prong of the Strickland test.

The alleged deficiency was counsel's failure to argue mitigating factor number six. Yet the sentencing judge who imposed the order of restitution was obviously well aware of this circumstance and therefore counsel's omission of a fact plainly evident to the court was neither constitutionally deficient nor prejudicial. Indeed, defendant has not demonstrated that had counsel articulated mitigating factor six to the trial court, there is a reasonable probability that his sentence would have been lower.

Defendant also argues that his guilty plea on Indictment No. 03-07-1379 was neither knowing or voluntary because: (1) the State improperly amended count 18 from a third-degree to a second-degree crime in violation of Rule 3:7-4; (2) the court applied the Graves Act after the State represented that it would not apply; and (3) the court never explained the sentence defendant would receive on counts 1 and 16. Moreover, he argues counsel was ineffective for allowing the plea to go through without an explanation of these sentences. We disagree.

Here, the amendment of count 18 was part of a negotiated plea agreement that contemplated dismissal of twenty other charges in the indictment. Defendant agreed to the amendment in writing, as it is memorialized on the plea form that he initialed and signed. Furthermore, defendant admitted his guilt of the amended charge. By entering his guilty plea, defendant waived his right to challenge any defects in the indictment. R. 3:10-2(c).

"'Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Marolda, 394 N.J. Super. 430, 435 (App. Div.) (quoting State v. Knight, 183 N.J. 449, 470 (2005)), certif. denied, 192 N.J. 482 (2007). Except for motions to suppress physical evidence and to contest pretrial intervention ineligibility, see R. 3:5-7(d); R. 3:28(g), a guilty plea constitutes a waiver of all claims based upon errors or defects in the proceedings that preceded the plea. State v. Owens, 381 N.J. Super. 503, 510 (App. Div. 2005). Therefore, defendant's failure to object to the amendment is deemed a waiver of his right to have a grand jury find probable cause that he committed the crime and he has failed to demonstrate "good cause" for relief from that waiver. R. 3:10-2(c).

As to the application of the Graves Act to count 18, this issue has been raised and resolved on direct appeal and is therefore procedurally barred from consideration on this PCR petition. R. 3:22-5. Suffice it to say, as we determined on direct appeal, the plea record conclusively demonstrates that defendant was well aware of his sentence exposure under the plea agreement.

Lastly, defendant complains that the court, at time of plea, failed to explain that, in addition to the eight-year term with a four-year parole bar, defendant would also be facing concurrent terms of five years with a two-year period of parole ineligibility on count 1 and five years on count 16. This argument fails because defendant's sentence met his reasonable expectation, which, under the agreement, was that the sentences on counts 1 and 16, along with the sentence on count 18, in the aggregate, would not exceed the eight years with a four-year period of parole ineligibility for which he had bargained. Defendant, in fact, received a sentence within the bargained-for limitation.

A