STATE OF NEW JERSEY v. MATTHEW NOBLES

NOT FOR PUBLICATION WITHOUT THE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.

MATTHEW NOBLES,

Defendant-Appellant.

_________________________________

April 9, 2014

Submitted March 18, 2014 Decided

Before Judges Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0410.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Armando B. Suarez, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Matthew Nobles appeals from the denial of his petition for post-conviction relief (PCR), claiming the PCR judge erred when he denied his request for an evidentiary hearing and dismissed his petition. We affirm.

On May 15, 2008, a Union County Grand Jury returned an indictment charging defendant with third-degree possession of heroin and cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin and cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); and third-degree possession of heroin and cocaine with intent to distribute on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three).

On October 28, 2008, defendant pled guilty to count two of the indictment, third-degree possession of heroin and cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). Under the plea agreement, the State agreed to dismiss the remaining counts and recommend a six-year term with a thirty-month period of parole ineligibility.1 On January 9, 2009, defendant was sentenced in accordance with the plea agreement. The court found aggravating factors three and nine, and no mitigating factors. See N.J.S.A. 2C:44-1a(3) (the risk of re-offense) and (9) (the need to deter defendant and others). Defendant did not file a direct appeal.

On February 17, 2012, defendant filed a petition for PCR, in which he noted the absence of any reference in the record to plea counsel receiving from the State, as required by the Brimage2 Guidelines, a Brimage Plea Negotiation Worksheet. See Attorney General Law Enforcement Directive 2004-2, Revised Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12, at 9. Defendant argued plea counsel was ineffective for not obtaining and reviewing the Worksheet, as the Worksheet may have revealed the prosecutor arbitrarily and capriciously failed to make a downward adjustment of the mandatory minimum sentence prescribed for the offenses with which he was charged. While under N.J.S.A. 2C:35-12, a prosecutor is permitted to waive a mandatory sentence, the exercise of a prosecutor's discretion under the statute is subject to review by the court. State v. Vasquez, 129 N.J. 189, 195-96 (1992). Defendant contends plea counsel deprived him of an opportunity to challenge the prosecutor's decision not to waive the mandatory minimum sentence.

After hearing oral argument, the PCR court denied defendant's petition, finding he failed to assert a prima facie case of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and determined defendant was not entitled to an evidentiary hearing because he could not demonstrate a likelihood that his claim would succeed on the merits.

On appeal, defendant asserts the following point:

POINT I: THE COURT MISAPPLIED THE LAW IN DENYING THE PCR WITHOUT AN EVIDENTIARY HEARING ON WHETHER DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO OBTAIN THE BRIMAGE WORKSHEET AND RENEGOTIATE HIS SENTENCE

Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

This standard also applies in the context of guilty pleas, where the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. , , 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012); State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012).

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief and has demonstrated "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citing State v. Preciose, 129 N.J. 451, 463 (1992)). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We have considered defendant's arguments in light of the applicable law, and we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant failed to demonstrate that even if counsel failed to review the Brimage Plea Negotiation Worksheet, there existed a reasonable probability he would have refused to have pled guilty and insisted on trial.

1As defendant had been convicted previously of possession with intent to distribute, pursuant to N.J.S.A. 2C:35-5, he was subject to an extended term as authorized by N.J.S.A. 2C:43-7(c). See N.J.S.A. 2C:43-6(f). At the time of the plea hearing, the State had not applied for an extended term, as required by N.J.S.A. 2C:43-6(f), but defendant agreed to waive such requirement during the hearing.

2 State v. Brimage, 153 N.J. 1, 23 (1998).