STATE OF NEW JERSEY v. ZAKI JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4354-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZAKI JONES,

Defendant-Appellant.

_________________________________

November 29, 2012

Submitted November 15, 2012 - Decided

Before Judges Axelrad and Haas.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-05-0507.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Travis H. Carter, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Zaki Jones appeals from a December 17, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

I.

Pursuant to a plea agreement reached with the input of the trial judge pursuant to Rule 3:9-3(c), defendant pled guilty to third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree attempted theft, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3; fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1); third-degree burglary, N.J.S.A. 2C:18-2; second-degree eluding, N.J.S.A. 2C:29-2b; second-degree aggravated assault, N.J.S.A. 2C:12-1b(6); and first-degree carjacking, N.J.S.A. 2C:15-2. He was sentenced to an aggregate term of fourteen-years imprisonment, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant filed an excessive sentence appeal and we affirmed the sentence imposed. State v. Jones, No. A-1207-05 (App. Div. Oct. 16, 2006). The Supreme Court denied certification. State v. Jones, 190 N.J. 255 (2007).

In 2008, defendant filed a PCR petition. He alleged that his trial attorney did not visit him at the jail or adequately discuss the case with him. Defendant also alleged his attorney incorrectly advised him that the 350 days of gap time credit he received at the time of sentencing would be applied to reduce the NERA portion of his sentence.

Judge James C. Heimlich, who was also the trial judge, conducted an evidentiary hearing on defendant's claims. Defendant testified his attorney had not met with him until shortly before he agreed to plead guilty. He also alleged the attorney advised him that his gap time credit would reduce the minimum period of parole ineligibility imposed under NERA. Defendant claimed he would not have pled guilty if he had known the gap time credit would not reduce the NERA portion of his sentence. Defendant's trial attorney testified he did not recall representing defendant or any of the circumstances of his case.

In a thorough oral opinion, Judge Heimlich found defendant's claims were not credible. At the time of the plea, defendant testified he was satisfied with the performance of his counsel and that all his questions had been answered. The judge also found the plea form clearly indicated that the minimum period of parole ineligibility was eleven years, nine months, which is 85% of defendant's fourteen-year aggregate sentence. The plea form also states that "this period cannot be reduced by good time, work, or minimum custody credits." Therefore, the judge denied defendant's petition for PCR. This appeal followed.

II.

On appeal, defendant generally argues that the judge erred in denying his PCR petition. Our review of the record, however, convinces us that the judge acted properly in denying defendant's petition for PCR. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add these brief comments.

To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984)).

Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and "sound trial strategy" in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummins, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We also defer to a trial court's "credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).

Defendant alleged that his trial counsel was ineffective because he did not meet with him frequently before the plea agreement was entered and because he misinformed him as to the applicability of his gap time credits. However, defendant's claim that his attorney did not meet with him or adequately explain the details of the plea agreement is belied by defendant's testimony at the plea hearing. Defendant testified he was satisfied with his attorney's performance and that his attorney had explained the charges, defendant's rights and his responsibilities under the plea. In addition, defendant admitted he had read and understood the plea agreement form. The PCR judge heard and observed defendant as he testified and specifically found that defendant's claims of ineffective assistance of counsel were "not believable." We find no basis to question or disturb that credibility determination. Locurto, supra, 157 N.J. at 474.

Similarly, the plea form specifically stated that defendant would be required to serve a minimum of eleven years and nine months on his fourteen-year NERA sentence. The plea form also makes clear that the minimum period of parole ineligibility cannot be reduced by custody credits. Thus, Judge Heimlich properly rejected defendant's claim that he believed the NERA portion of his sentence would be reduced by gap-time credits.

The judge also found that, even if defendant's attorney had given defendant incorrect advice concerning the application of these credits, this would not have made a difference in defendant's decision to enter the plea. Defendant had been charged with twenty-three offenses arising out of series of car burglaries, including carjacking, robbery and eluding the police. The judge found that his maximum exposure if convicted of all of these charges could approach eighty years. The State's plea offer was a recommendation that defendant serve twenty years, subject to NERA. Pursuant to Rule 3:9-3(c), however, the judge advised defendant he would sentence him to a fourteen-year term, subject to NERA. The judge noted the State's case was strong and its witnesses were available to testify at trial. Under those circumstances, the judge properly held that, even if the record could support a finding that defendant's trial counsel gave him incorrect advice, there was no reasonable probability that this would have affected defendant's decision to accept this very generous plea offer.