STATE OF NEW JERSEY v. GREGORY MAITLAND

NOT FOR PUBLICATION WITHOUT THE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.

GREGORY MAITLAND,1

Defendant-Appellant.

___________________________

June 10, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2292; Accusation Nos. 01-11-2781, 00-03-0373.

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

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

PER CURIAM

Defendant appeals from a May 21, 2012 order denying his second petition for post-conviction relief (PCR) relating to Accusation No. 00-03-0373 and Indictment No. 04-12-2292; and his first PCR petition relating to Accusation No. 01-11-2781. We affirm the denial of his second petition for PCR on Accusation No. 00-03-0373 and Indictment No. 04-12-2292, and reverse without prejudice and remand for assignment of counsel on his first PCR petition on Accusation No. 01-11-2781.

In May 1999, the court admitted defendant into the pre-trial intervention (PTI) program for committing fourth-degree possession of a stolen credit card, N.J.S.A. 2C:21-6c(1).2 Defendant then committed a disorderly persons offense, and the court terminated defendant's participation in the PTI program. In March 2000, defendant pled guilty to fourth-degree possession of a stolen credit card (Accusation No. 00-03-0373), and in April 2000, the judge imposed a two-year probationary sentence pursuant to the plea agreement.

Defendant violated the terms of his probation by committing more crimes. In November 2001, defendant pled guilty to third-degree resisting arrest by eluding an officer, N.J.S.A. 2C:29-2b; and third- and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (Accusation No. 01-11-2781). In April 2002, the judge followed this plea agreement by sentencing defendant to an aggregate three-year prison term for the new crimes and his violation of probation. In March 2005, defendant pled guilty to third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (Indictment No. 04-12-2292). In May 2005, the judge followed this plea agreement and sentenced defendant to 180 days in the county jail, suspended the jail sentence, and imposed a two-year probationary term. Defendant did not file a direct appeal from any of these convictions.

In March 2010, defendant filed a petition for PCR related to Accusation No. 00-03-0373 and Indictment No. 04-12-2292. Defendant contended that his counsel failed to advise him about the deportation consequences of his guilty pleas.3 In September 2010, the judge denied defendant's petition and we affirmed that denial. State v. Maitland, No. A-3061-10 (App. Div. Jan. 7, 2013).

In August 2011, defendant filed his second petition for PCR as to his convictions related to Accusation No. 00-03-0373 and Indictment No. 04-12-2292, and asserted for the first time that he received ineffective assistance of plea counsel on the convictions related to Accusation No. 01-11-2781. Defendant argued that (1) his PCR counsel failed to argue to the judge that plea counsel did not tell defendant that he could re-apply to the PTI program after pleading guilty to fourth-degree possession of a stolen credit card (Accusation No. 00-03-0373), (2) plea counsel did not inform defendant about the deportation consequences of his plea and should have argued more aggressively at sentencing (Accusation No. 01-11-2781); and (3) plea counsel failed to provide advice about deportation consequences (Indictment No. 04-12-2292).

The PCR judge denied defendant's August 2011 petition and issued a written statement of reasons. He concluded that defendant failed to present a prima facie case of ineffectiveness as to the convictions related to Accusation No. 00-03-0373 and Indictment No. 04-12-2292, and that defendant's first petition for PCR on Accusation No. 01-11-2781 was untimely pursuant to Rule 3:22-12(a)(1).

On appeal, defendant raises the following points:

POINT I

THE PCR COURT ERRED IN DENYING MR. MAITLAND'S PETITION FOR POST-CONVICTION RELIEF ON ACCUSATION NO. 01-11-2781 AS TIME-BARRED ON THE PRO SE PETITION WITHOUT PERMITTING PCR COUNSEL TO FILE ANY SUBMISSION IN SUPPORT OF SAME.

POINT II

THE PCR COURT ERRED IN DENYING ALL OF MR. MAITLAND'S CLAIMS THAT PCR COUNSEL ON HIS FIRST PETITION FOR POST-CONVICTION RELIEF ON ACCUSATION NO.:00-03-373 AND INDICTMENT NO.: 04-12-2292 WAS INEFFECTIVE WITHOUT FIRST HOLDING AN EVIDENTIARY HEARING.

The State agrees with defendant's argument contained in Point I that the judge erred by denying defendant's first petition for PCR as to Accusation No. 01-11-2781 because counsel was not appointed pursuant to Rule 3:22-6(a). As a result, we reverse without prejudice that part of the order pertaining to Accusation No. 01-11-2781 and remand for the appointment of counsel. We find no merit to the contentions raised by defendant in Point II, R. 2:11-3(e)(2), regarding Accusation No. 00-03-0373 and Indictment No. 04-12-2292. We make the following brief remarks.

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. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). We are persuaded that the alleged deficiencies clearly fail to meet either the performance or the prejudice prong of the Strickland test. Defendant is unable to show that there was a reasonable probability for re-admission into the PTI program. As a result, an evidentiary hearing was unwarranted because defendant has not shown a prima facie claim of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed as to the denial of defendant's second petition for PCR related to Accusation No. 00-03-0373 and Indictment No. 04-12-2292; reversed and remanded as to defendant's first petition for PCR on Accusation No. 01-11-2781 for appointment of counsel. We do not retain jurisdiction.

1 Also referred to as Gregory P. Maitland and Gregory S. Maitland throughout documentation in the record.

2 The State filed this charge under Accusation No. 948-99, but later dismissed that accusation and re-filed the charge under Accusation No. 00-03-0373.

3 In March 2010, defendant was deported to Jamaica.