STATE OF NEW JERSEY v. SAMUEL D. WENDELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6099-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL D. WENDELL, a/k/a

SAMUEL D. WENDALL and DUANE S.

WENDELL.

Defendant-Appellant.

_____________________________

December 14, 2011

Submitted July 19, 2011 - Decided

Before Judges R. B. Coleman and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-02-0310.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals the denial of his post-conviction relief (PCR) petition arising out of his conviction for one count of third-degree absconding from parole, N.J.S.A. 2C:29-5b, and one count of second-degree criminal attempt and eluding, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-2b. The conviction stemmed from a negotiated plea agreement in which the State agreed that in exchange for defendant's guilty plea to the absconding and eluding charges, it would dismiss the remaining counts in the twelve-count indictment returned against defendant and recommend a probationary sentence conditioned upon defendant's completion of a long-term inpatient drug rehabilitation program. The agreement also provided that any violation of probation would result in defendant serving nine years in New Jersey State Prison. The court sentenced defendant, in accordance with the agreement, to four years probation, conditioned upon defendant's completion of an eighteen to twenty-four month, inpatient drug rehabilitation program, as well as other conditions. In imposing the sentence, the court found, as aggravating factors, the nature and circumstances of the offense, the risk that defendant will commit another offense, the extent of his prior record, and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(1), (3), (6) and (9). The court found one mitigating factor, defendant's willingness to participate in a probationary program, namely, a long-term inpatient drug treatment program, N.J.S.A. 2C:44-1b(10).

On July 21, 2006, the court conducted a violation of probation hearing based upon the charge that defendant had been involuntarily discharged from two inpatient drug treatment programs and failed to report to his probation officer. Defendant pled guilty to the charges. The court noted the aggravating factors it had previously found, as well as the one mitigating factor it had also considered, and expressed that it had "no alternative but to impose the jail term that was provided for by contract under the plea agreement." The court sentenced defendant to a nine-year term in New Jersey State Prison on the eluding charge and to a concurrent four-year term on the absconding charge.

On February 28, 2008, defendant filed a pro se PCR petition. Eleven weeks later, defendant filed a motion seeking to directly appeal the sentence imposed. We denied the motion on the basis that the appeal was out of time. In September 2009, now being represented by counsel, defendant filed a supplemental brief in support of his PCR petition. Defendant was subsequently paroled on October 27, 2009.

In seeking PCR, defendant urged that his trial counsel failed to conduct an adequate pretrial investigation, which would have revealed that he was not competent to stand trial. In support of this contention, defendant submitted an expert report in which the expert opined that defendant was not competent to stand trial. Additionally, defendant contended that trial counsel advised that he had viable defenses that could be advanced in a suppression motion but that by pleading guilty, he effectively waived those defenses and therefore gave up his right to a trial by jury and the pretrial challenges.

In response, the State argued that the plea colloquy established that defendant had a clear recollection of the events giving rise to the charges against him and that the expert report is based upon an extrapolation analysis, which is essentially belied by the voir dire conducted of defendant at the plea hearing.

The PCR judge first found that defendant's claims were time-barred and that his claims that trial counsel was ineffective for failing to conduct a meaningful pretrial investigation and misled him about the consequences of his plea could have been raised on direct appeal. Additionally, the court concluded that defendant's claim that he is entitled to withdraw his guilty plea "is more properly raised by the filing of a motion to withdraw the previously entered guilty plea" before the trial court.

In addition to the procedural deficiencies in defendant's petition, the PCR judge found the merits of defendant's petition lacked a substantive basis for relief. Specifically, the court observed that trial counsel negotiated a twelve-count indictment down to guilty pleas on two counts and a probationary sentence. The court also noted that prior to entering his guilty pleas, defendant "was questioned at length as to his recollection of the incident" by his attorney and thereafter by the State. The court found that "defendant-petitioner's ability to recall the facts of the incident in detail directly undermines his contentions in his petition and his expert's report."

Likewise, the PCR judge concluded that the plea form, as well as the plea hearing transcript, demonstrate that defendant not only understood what the charges meant, but also that he was giving up his right to a jury trial in which the State would bear the burden of proving the charges against him, his attorney had not made any promises or representations beyond the plea agreement made to him, and that he was satisfied with the legal representation provided on his behalf. The judge then referenced portions of the plea hearing, including the trial court's extensive questioning of defendant regarding his background, education, and understanding of his right to a trial by jury. The trial judge then directed defendant to explain to the court the plea offer extended to him, to which defendant responded:

The offer is I'm going to a drug program which I've been accepted to and there's a bed waiting for an [eighteen]-month period. I can get up to five years probation[,] which is a stipulation . . . you put on me. That [eighteen] months to be in the program goes towards that five years max[imum] of probation[,] and if I violate either/or, I'm sentenced to a nine-year flat.

Thereafter, the PCR judge concluded:

Based on this record, not only is it abundantly clear that the defendant-petitioner was competent, but that he understood his plea deal in enough detail to recite its terms and ask a cogent question about it.

Accordingly, even if the [c]ourt found that the defendant-petitioner's claims were not procedurally barred, they would not give rise to the requested relief because they are without merit. As a result, the defendant-petitioner is not entitled to an evidentiary hearing on his claims because he has failed to establish a prima facie case. [State v.] Preciose, 129 N.J. [451 (1992)].

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

POINT I

THE LOWER COURT ERRED IN DENYING MR. WENDELL'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AS PROCEDURALLY BARRED.

POINT II

THE LOWER COURT ERRED IN DENYING MR. WENDELL'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

POINT III

THE LOWER COURT ERRED IN FAILING TO VACATE THE ILLEGAL SENTENCE IMPOSED UPON MR. WENDELL FOLLOWING A VIOLATION OF PROBATION.

The State concedes that it was error to sentence defendant to a nine-year custodial term based upon defendant's contract plea that included, as a condition, imposition of a nine-year sentence in the event defendant violated the terms of his probation. See State v. Sepulveda, 253 N.J. Super. 447, 451 (App. Div.), modified on other grounds, 130 N.J. 589 (1992) (holding "[w]hether a defendant's violation of probation is sufficiently egregious to warrant revocation of probation is a decision reposed by the Legislature in the courts, not the prosecutor"). Nonetheless, the State urges that because the trial court reassessed the relevant aggravating factors and found the same aggravating factors as it found at the time defendant was originally sentenced, minus the sole mitigating factor previously considered finding it no longer applicable there was an independent basis for imposition of the nine-year custodial sentence.

While there may have been an independent basis upon which to impose the nine-year custodial sentence, the sentencing court failed to engage in the appropriate sentencing analysis. Such analysis, in the first instance, requires the court to "initially reconsider the 'in-out' decision. If the court decides to revoke defendant's probation, then in arriving at the length of the sentence, it must balance the original aggravating and surviving mitigating factors." State v. Molina, 114 N.J. 181, 186 (1989). Here, the sentencing was not influenced by consideration of the "in and out" decision followed by a balancing of the original aggravating and any surviving mitigating factors. Rather, sentencing was guided by the court's belief that it had no choice other than to impose the nine-year sentence in light of the contract, which the State concedes was invalid.

Defendant, however, failed to file a direct appeal on this issue or as to his claim that he was not competent to stand trial. Ordinarily, issues that could have been raised on direct appeal, but which were not raised, may not be raised through PCR proceedings unless (1) the "ground for relief not previously asserted could not reasonably have been raised in any prior proceeding"; (2) "enforcement of the bar . . . would result in fundamental injustice"; or (3) "denial of relief would be contrary to . . . the Constitution of the United States or the State of New Jersey." R. 3:22-4(a).

Unquestionably, defendant could have sought direct review of his claims that he was incompetent to stand trial and subjected to an illegal sentence on direct appeal. Additionally, defendant's claim that the sentence imposed was illegal is not subject to the procedural bar under Rule 3:22-4 and may be raised at any time before the trial court. Such a claim, however, may only be raised as part of a PCR petition where it is alleged in conjunction with a cognizable claim pursuant to Rule 3:22-2.

We are satisfied that defendant has not asserted a claim otherwise cognizable under Rule 3:22-2. As the trial court observed, there is absolutely no merit to defendant's claim of ineffective assistance of counsel. Such a claim is viable where a defendant is able to establish a prima facie case that not only was his counsel's performance deficient, but also that the deficient performance prejudiced the defense. State v. Tacetta, 200 N.J. 183, 193 (2009). Where establishing a prima facie claim of ineffective assistance of counsel requires consideration of matters outside of the record, a defendant is entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462.

As the trial court noted, defense counsel successfully negotiated a non-custodial sentence along with the dismissal of ten of the charges contained in the twelve-count indictment. Had defendant proceeded to trial and been convicted of all charges, his maximum custodial exposure could have exceeded twenty years. Likewise, the plea colloquy belies any claim by defendant that he lacked the competency to stand trial. Hence, there was no basis to afford defendant an evidentiary hearing, much less PCR on the merits of his claims.

Because defendant has not asserted claims that are otherwise cognizable under Rule 3:22-2, his claim, which the State concedes is meritorious, that the sentencing judge on the violation of probation imposed a sentence not authorized by law, Sepulveda, supra, 253 N.J. Super. at 451, must proceed through a motion before the trial court pursuant to Rule 3:21-10(b)(5).

Affirmed.