STATE OF NEW JERSEY v. MICHAEL STALLWORTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL STALLWORTH,

Defendant-Appellant.

______________________________

September 30, 2013

Submitted August 28, 2013 Decided

Before Judges Waugh and Haas.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 05-04-0457 and 05-11-1568.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Michael Stallworth appeals from the February 27, 2012 order of the Law Division denying his petition for post-conviction relief (PCR) without conducting an evidentiary hearing. Having considered defendant's arguments in light of the record and controlling law, we conclude he is entitled to a hearing on his claims. Accordingly, we reverse the order that denied his PCR petition without a hearing and remand for a hearing.

On April 5, 2005, defendant was charged in a five-count Ocean County indictment with first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five). On September 7, 2005, defendant entered into a plea agreement under which the State agreed to amend count two of the indictment to fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4). In return for his guilty plea to this count,1 the State agreed to recommend that defendant be sentenced to eighteen months in prison, with an eighteen-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c.

On November 14, 2005, defendant returned to court before the same trial judge and pled guilty to a separate, one-count accusation, charging him with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). In return for his plea, the State agreed to recommend that defendant be sentenced to eighteen months in prison, concurrent to the sentence he would receive under the earlier indictment.

The judge questioned defendant on the record regarding the terms of this plea. Defendant testified that he understood that, although he was still a juvenile, he would be treated as an adult for purposes of the charge. Defendant also stated he understood the recommended sentence.

During the colloquy, however, defendant raised a specific concern about the impact his plea would have in the future should he be charged with additional offenses. The following exchange occurred between the court, defendant, defense counsel and the prosecutor:

[THE COURT]: [H]ave any other promises been made to you?

[DEFENDANT]: Only that everything together is going to be one conviction.

[THE COURT]: Well, it is not going to be one conviction. You will have convictions for two offenses but they will run concurrent.

[DEFENSE COUNSEL]: Judge, for the purposes of the record, if [defendant] were to get in trouble again, it would only count as one conviction since it would be on the same day with the same judge. It would be two separate offenses but one conviction because we have the same sentencing date.

[THE COURT]: Well, he would have - - this is semantics now. What are you indicating would be the effect? These are separate counts, are they not?

[DEFENSE COUNSEL]: They are separate cases. But for terms of - - hopefully, the event will not arise when [defendant] is in trouble again. But if he were to be, Judge, in terms of anything that would affect an extended term down the road or whatnot, that wouldn't even count because it happened as a juvenile. It is usually counted as one conviction because he would be sentenced on the same day by the same judge but for two separate offenses.

[THE COURT]: Prosecutor.

[PROSECUTOR]: That's my understanding, Your Honor. For purposes of any trouble, like a Brimage case, for instance, it is one conviction. Even though there were separate offenses, it is still one date of conviction.

[THE COURT]: So, I guess - - and you explained this to [defendant]?

[DEFENSE COUNSEL]: Yes, Judge. I think that's why he was asking you for some confirmation.

[THE COURT]: It is the same date but it is technically two convictions but it is going to be treated as the same offense if you were to be charged and convicted of another offense. Now, that may sound like a little confusing to you.

[DEFENDANT]: No, I understand. I just want to make sure it wouldn't make me extended term eligible for anything if ever I did happen to have another charge.

[THE COURT]: I see, in other words, should he be convicted of another offense, it would be - - it would not be a third conviction, it would be a second conviction.

[DEFENDANT]: Yeah.

[THE COURT]: And that's all been explained to you?

[DEFENDANT]: Yeah.

The judge then proceeded to accept defendant's guilty plea.

On December 22, 2005, the judge sentenced defendant to eighteen months in prison with an eighteen-month period of parole ineligibility on count two of the indictment, and to a concurrent eighteen-month term on the only count set forth in the accusation. Defendant did not appeal either sentence.

On March 26, 2006, defendant was charged in a one-count Ocean County indictment with third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), after he assaulted a fellow inmate. Defendant pled guilty to this charge and, on October 20, 2006, a different judge sentenced him to twelve days in the county jail and two years probation. Defendant did not file a direct appeal from this conviction.

While on probation, defendant was arrested by federal authorities on a charge of selling crack cocaine to a confidential informant, 21 U.S.C. 841(a)(1). He was convicted of this charge by a jury and, on November 8, 2007, the district court judge sentenced him, as a "career offender," to 195 months in prison. Defendant appealed this decision to the Third Circuit Court of Appeals, which affirmed the sentence in all respects. United States v. Stallworth, 310 F. App'x 537 (3rd Cir. 2009).

On October 29, 2010, defendant filed a timely petition for PCR. He stated that he had "specifically asked in court plea, will this affect me in the future," and had been told that the two offenses to which he pled in 2005 would be treated as a single conviction. Nevertheless, defendant asserted the offenses were treated separately by the federal district court and, as a result, he was deemed a "career offender" and received an extended sentence. Defendant was assigned counsel to represent him on the PCR petition and counsel prepared a supplemental brief, which argued that defendant had been provided incorrect and misleading information about the consequences his guilty pleas in 2005 would have on the disposition of future criminal charges.

The PCR judge denied defendant's petition without conducting an evidentiary hearing. With regard to the colloquy between defendant, the trial court and trial counsel regarding the two 2005 convictions, the PCR judge found that defense counsel's advice, and the trial judge's confirmation that "it is technically two convictions but it is going to be treated as the same offense if you were to be charged and convicted of another offense," was not ineffective assistance of counsel because only a single judgment of conviction was entered at the time. Thus, the PCR judge ruled that no one had "actually misrepresented the consequences of the plea" to defendant.

Significantly, neither party provided the judge with any documentation, such as a judgment of conviction, pre-sentence report, or sentencing transcript, concerning the district court's determination of defendant's sentence on the drug charge or its finding that defendant was "a career offender." Nevertheless, the judge stated he had examined the federal sentencing guidelines, which state that a defendant will be classified as a "career offender" if he commits a felony that is either a crime of violence of a drug offense and "has at least two prior felony convictions of either a crime of violence or a controlled dangerous substance offense." The judge reasoned that, because defendant had been convicted of third-degree aggravated assault in 2006, he would still have two prior felony convictions even if his two 2005 convictions were treated as a single conviction under the federal sentencing guidelines. The judge therefore ruled that "as to [defendant's] status as a 'career offender,' it is of no relevance whether his 2005 conviction was considered one conviction or two separate convictions."

The judge did not consider defendant's remaining argument that the number of offenses for which he was convicted in 2005 also played a role in the district court's determination of his sentence. The judge found that defendant did not raise this contention until the time of oral argument and, therefore, he declined to consider it. Finally, the judge denied defendant's request to withdraw his guilty plea. This appeal followed.

On appeal, defendant presents the following arguments:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S GUILTY PLEAS VACATED BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A PLEA BARGAINING PROCESS IN WHICH HE IS ACCURATELY ADVISED OF THE ENHANCED SENTENCING CONSEQUENCES OF HIS GUILTY PLEAS ON A SUBSEQUENT VIOLATION WAS VIOLATED.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV

DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA.

POINT V

POST-CONVICTION RELIEF SHOULD BE GRANTED BECAUSE APPELLATE COUNSEL WAS INEFFECTIVE.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). To set aside a guilty plea based on ineffective assistance of counsel, a defendant must establish under Strickland's second prong "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

A PCR hearing is not mandatory. R. 3:22-10(b) states:

A defendant [is] entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland test. State v. Preciose, 129 N.J. 451, 463 (1992).

Defendant contends his trial counsel was ineffective because she did not accurately advise him as to the consequences of his two guilty pleas in 2005 on the disposition of any future charges he might face. It is well-settled that there is "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty." State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div.), certif. denied, 162 N.J. 128 (1999). Thus, had defendant not specifically asked his attorney about the possible consequences of his pleas on future federal charges, the result we reach might be different.

However, a "[d]efendant has the right to receive correct legal advice from his attorney in matters material to him in deciding to accept or reject the State's plea offer." State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012). Here, defendant was very concerned about whether his two guilty pleas would constitute one or two convictions and the impact they would have on his sentence if he committed a future offense. He specifically told the trial judge, "I just want to make sure it wouldn't make me extended term eligible for anything if ever I did happen to have another charge." The advice defendant received from his attorney, which was confirmed by the court and the prosecutor, was that the two offenses would be considered as a single conviction in the future. The judge told defendant that "should he be convicted of another offense, it would be - - it would not be a third conviction, it would be a second conviction."

Under the circumstances of this case, we agree defendant has demonstrated a prima facie case of ineffective assistance of counsel that warranted an evidentiary hearing. A fair reading of the colloquy on November 14, 2005 indicates defendant could reasonably have concluded from the advice given to him by his attorney, and the remarks made by the prosecutor and the judge, that, even though he had committed two offenses, they would be treated as a single entity if he later got into trouble. Before us, defendant argues this advice was incorrect because he was found to be a "career offender" under the federal sentencing guidelines based upon the fact that he had a total of three prior convictions, two from 2005 and one from 2006, at the time he was convicted of the federal charge. However, because the PCR judge did not examine defendant's federal judgment of conviction, a pre-sentence report, or the transcript of the federal sentencing, there is no way of determining the specific impact the 2005 offenses had on the overall sentence. An evidentiary hearing is therefore required.

The PCR judge found that because defendant was convicted of an eligible offense in 2006, he would still have been determined to be a "career offender" even if only one of his 2005 convictions was considered. However, this finding does not address defendant's assertion that the federal sentencing court still considered each of defendant's prior offenses separately and that, if the 2005 matters were treated as a single offense for future sentencing purposes as defendant alleges he was promised, he would have received a reduced sentence on the federal drug charge.

In this regard, it does not appear from the transcript of defendant's guilty plea on November 14, 2005 that defendant understood the difference between "convictions" and "offenses" and their impact on future sentencing decisions. The difference was certainly never explained to him on the record. The State does not strongly dispute defendant's contention that, regardless of how many "convictions" he might have, a district court judge will always consider all of a defendant's prior "offenses" in determining an appropriate sentence within the federal guidelines. Conducting an evidentiary hearing would therefore enable the PCR court to determine whether defendant would have accepted the plea offer in 2005 if he knew that a federal court would consider each offense separately in determining an appropriate sentence for a future offense.

The State argues that, in asking about the impact of his convictions on a future sentence, defendant was only concerned about future State, rather than federal, charges. However, the record does not support this contention because defendant did not expressly limit his inquiry solely to State matters. Thus, this is an issue that should be explored at an evidentiary hearing.

In sum, we conclude that defendant established a prima facie case of ineffective assistance of counsel that could not be resolved on the record before the PCR judge. We therefore reverse the judge's denial of defendant's petition for PCR and remand the matter for an evidentiary hearing.

Reversed and remanded. We do not retain jurisdiction.

1 Under the terms of the plea agreement, the remaining counts of the indictment were dismissed.