STATE OF NEW JERSEY v. HASSAN CHERRY

NOT FOR PUBLICATION WITHOUT THE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.

HASSAN CHERRY,

Defendant-Appellant.

____________________________________

April 4, 2014

Submitted March 19, 2014 Decided

Before Judges Grall and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-1238.

Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hassan Cherry appeals the Law Division's August 16, 2012 order dismissing his petition for post-conviction relief (PCR). We affirm.

We discern the following facts and procedural history from the record on appeal. In July 2008, Cherry was charged with five drug offenses arising out of his arrest in June. His motion to suppress the evidence was denied in March 2009. In April, he accepted a plea offer that called for him to plead guilty to one count of second-degree possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1), in exchange for which he would be sentenced to incarceration for five years, with two-and-a-half years of parole ineligibility. In June, he was sentenced in accordance with the plea.

Cherry appealed the denial of his motion to suppress and we affirmed. State v. Cherry, No. A-4321-09 (App. Div. July 22, 2011). The Supreme Court denied Cherry's petition for certification. State v. Cherry, 209 N.J. 97 (2012).

In February 2012, Cherry filed a pro se PCR petition, which was supplemented by a brief filed by the Office of the Public Defender. Following oral argument on August 16, 2012, the PCR judge delivered an oral decision explaining his reasons for denying relief and dismissing the petition. The implementing order was filed the same day. This appeal followed.

Cherry makes the following arguments on appeal:

POINT ONE: THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST-CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BASED ON COUNSEL'S SERIOUS ERRORS AT THE PLEA AND SENTENCING HEARINGS THAT UNFAIRLY PREJUDICED THE DEFENDANT. (RAISED BELOW, IN PART)

Cherry contends that he presented a prima facie case that his trial counsel was constitutionally deficient in failing to argue mitigating factors at sentencing, which he claims would have resulted in a reduced sentence, and in failing to insure that the trial judge clearly articulated his reasons for imposing the sentence. He also argues that, even if we determine that he received a mandatory sentence, his trial counsel was constitutionally deficient because, had his attorney explained that aspect of the plea offer sufficiently, he would not have accepted it.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Having reviewed Cherry's arguments in light of the record before us and the applicable law, we find them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

A defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. Because Cherry failed to do so, the PCR judge did not err in refusing to hold such a hearing.

Cherry pled guilty to a second-degree offense, which carries a presumption of incarceration and a minimum five-year sentence. N.J.S.A. 2C:43-6(a)(2). At the plea hearing, the judge established that Cherry had reviewed the plea form with his attorney and that he understood it. Cherry answered Question 7a on the plea form in the affirmative, thereby acknowledging that he understood that he was pleading guilty to an offense with a mandatory minimum period of parole ineligibility of two years and six months. See N.J.S.A. 2C:43-6(f).1 As a result, the judge had no discretion in imposing the sentence.

Even if the trial judge had discretion in imposing the sentence, we are satisfied that the resulting sentence would not have been different had defense counsel made the arguments which Cherry argues should have been made. Cherry's childhood history was set out in the presentence report and reviewed by the trial judge. Had the judge found mitigating factors, we have no doubt he would have imposed the sentence contemplated by the plea agreement. Consequently, we affirm the order dismissing Cherry's PCR petition.

1 The plea offer was made pursuant to the Brimage guidelines. State v. Brimage, 153 N.J. 1 (1998).