STATE OF NEW JERSEY v. QUAISHAWN L. RAY

NOT FOR PUBLICATION WITHOUT THE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.

QUAISHAWN L. RAY, a/k/a

QUAISHAWN LAMAR RAY,

Defendant-Appellant.

______________________________________

June 16, 2014

Submitted May 12, 2014 Decided

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-11-2593.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Quaishawn L. Ray appeals from an order entered by the Law Division on November 16, 2012, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Atlantic County Indictment No. 10-11-2593 with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree distribution of a CDS (cocaine), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); third-degree possession of a CDS (heroin), N.J.S.A. 2C:35-10(a)(1) (count four); and third-degree possession of a CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five).

On March 1, 2011, defendant pled guilty to count three of the indictment, charging third-degree distribution of a CDS, and agreed to forfeit the money seized from him at the time of his arrest. The State agreed to the dismissal of the other counts of the indictment, and to recommend a sentence of eight years of incarceration, with a forty-nine-month period of parole ineligibility. The sentence would be concurrent with sentences imposed on Indictment Nos. 08-08-1882 and 09-10-2433.

The plea agreement stated that defendant reserved the right to argue for in-patient drug rehabilitation, pursuant to N.J.S.A. 2C:35-14. The agreement also stated that if defendant's application under N.J.S.A. 2C:35-14 was denied, defendant would proceed to sentencing, as provided therein.

Defendant was sentenced on May 13, 2011. Defense counsel noted that the State had not consented to defendant's admission to in-patient drug rehabilitation pursuant to N.J.S.A. 2C:35-14. The court then sentenced defendant. The court noted that defendant was twenty years old. The court also noted that defendant has a lengthy juvenile record consisting of ten arrests and four adjudications. In addition, defendant has four arrests and three prior convictions, including two indictable convictions for possession of a CDS with intent to distribute. Defendant also violated probation pertaining to the sentences imposed on Indictment Nos. 08-08-1882 and 09-10-2433.

The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors.

The court sentenced defendant in accordance with the plea, imposing an eight-year term of incarceration, with a forty-nine- month period of parole ineligibility. The court ordered that the sentence be served concurrently with the sentences imposed on Indictment Nos. 08-08-1882 and 09-10-2433. The remaining counts of the indictment were dismissed. Defendant did not file a direct appeal.

On March 23, 2012, defendant filed a pro se petition for PCR. The court appointed counsel for defendant and on August 16, 2012, counsel filed a verified petition in support of PCR. Defendant claimed that he had been denied the effective assistance of counsel. He said that counsel had advised him that he would seek his entry into an in-patient drug program.

Defendant claimed that he was never aware that this required the State's consent. He alleged that, had he been advised that the State would not consent to his admission to the drug program, he would not have pled guilty and he would have insisted on going to trial. PCR counsel filed a brief in support of the petition.

On November 16, 2012, the PCR court placed its decision on the record, finding that defendant's claim had no support in the record of the plea and sentencing, which indicated that defendant had been fully informed that the State's consent to his admission to an in-patient drug program was required, and that the State had not consented to such admission.

The court found that there was no need for an evidentiary hearing, because the record provided a basis for resolving the claim. The court concluded that defendant has not been denied the effective assistance of counsel and denied the petition. The court memorialized its decision in an order dated November 16, 2012. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT ONE

TRIAL COUNSEL PROVIDED DEFENDANT INCORRECT ADVICE WHEN HE PERSUADED HIM TO ACCEPT A PLEA AGREEMENT ON THE BASIS THAT HE WAS ELIGIBLE TO BE SENTENCED TO A DRUG PROGRAM IN ACCORDANCE WITH N.J.S.A. 2C:35-14, THUS DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We find no merit in either argument, and affirm the PCR court's order denying defendant's petition for PCR substantially for the reasons stated by the court in its decision from the bench on November 16, 2012. We add the following.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must establish that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Where, as in this case, a defendant claims that he was denied the effective assistance of counsel with regard to a plea, the defendant must show that "(i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases,' and (ii) '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.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (citation omitted) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)), certif. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Here, defendant pled guilty to third-degree distribution of a CDS (cocaine), contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), as charged in count three of the indictment. Because defendant had previously been convicted of third-degree distribution of a CDS, he was subject to an extended term with a mandatory minimum term of incarceration of between one-third and one-half of the sentence imposed, or three years, whichever is longer, pursuant to N.J.S.A. 2C:43-6(f).

In the plea agreement, the State agreed to recommend a sentence of eight years of incarceration, with a forty-nine- month period of parole ineligibility. The agreement permitted defense counsel to seek defendant's admission to an in-patient drug rehabilitation program pursuant to N.J.S.A. 2C:35-14.

However, N.J.S.A. 2C:35-14(b)(3) provides that a person shall not be eligible for admission to a rehabilitation program if he or she has been convicted of a crime for which a mandatory minimum sentence has been prescribed. Furthermore, N.J.S.A. 2C:35-12 provides that the trial court must impose the mandatory sentence required by the Comprehensive Drug Reform Act, N.J.S.A. 2C:35-1 to 36A-1, unless the prosecutor, through a plea or post-conviction agreement, waives the mandatory minimum sentence. State v. Brimage, 153 N.J. 1, 3 (1998).

As noted previously, the plea agreement in this case allowed defendant to apply to the court for admission to an in-patient rehabilitation program pursuant to N.J.S.A. 2C:35-14. However, defendant could not be admitted to a rehabilitation program pursuant to N.J.S.A. 2C:35-14 unless the prosecutor agreed to waive the mandatory minimum term required by N.J.S.A. 2C:43-6(f).

Defendant claims that he was denied the effective assistance of counsel because his attorney told him he was eligible for admission to a drug program. He asserts that counsel never explained to him that the prosecutor had a virtual veto power over his admission. As the PCR court found, the record does not support this claim.

At the plea hearing, defendant told the court that he had agreed to a sentence of eight years, with a forty-nine-month period of parole ineligibility "with a drug program." The following colloquy ensured:

[COURT]: Or a drug program. You're going to have to make a motion under the statute that's referenced in your plea and you have to qualify and meet all of the criteria for that in order for it even to be considered. Do you understand that?

[DEFENDANT]: Yes.

[COURT]: And do you understand [it will] be up to me whether or not to grant your application under that statute?

[DEFENDANT]: Yes.

. . . .

[ASSISTANT PROSECUTOR]: Your Honor, does the defendant also understand that the State as well must consent to the 35, 14 and if he's denied by the State, then he'll proceed to sentence?

[DEFENSE COUNSEL]: He heard the question.

[DEFENDANT]: Yes.

At the sentencing hearing on May 13, 2011, defense counsel stated:

Your Honor, in this matter also in the plea agreement, the Court may recall, was a reservation. Although this was a Brimage situation and my client understood the implication of this, there wasn't any agreement by the State to recommend the inpatient, but we did reserve the right to seek it. The prosecutor has discretion under the statute. I explained that to my client and his mother at the time of the plea and . . . we did proceed with that, Your Honor, and obtained a Damon House reservation letter, which was even updated where he, if the Court permitted him to have a 35, 14, he would be in on [the] May 16th admission date, 10 a.m. on May 16th.

Defense counsel asked the court to order defendant's admission to the rehabilitation program pursuant to N.J.S.A. 2C:35-14. He added that the assistant prosecutor had made clear to defendant and his family that the State opposed the application. Defense counsel noted that the prosecutor had taken the time and sat with him, defendant and his family and indicated that the State would not agree to defendant's admission to the program.

Furthermore, in a side-bar colloquy with the court, defendant's counsel said that defendant and his family were well aware that admission to an in-patient rehabilitation program was not part of the plea agreement. He told the court that the defense had only reserved the right to seek admission to the in-patient rehabilitation, but defendant's family understood that the prosecutor had the discretion to consent or refuse to consent to admission.

Thus, as the PCR court found, the record does not support defendant's claim that his attorney erroneously informed him that he was eligible for admission to a N.J.S.A. 2C:35-14 program. Indeed, the record makes clear that defendant and his family were told that the State's consent was required for his admission to an in-patient rehabilitation program, and the State informed defendant that it would not consent.

We therefore conclude that the PCR court correctly determined that defendant has not been denied the effective assistance of counsel. Moreover, because there was no genuine issue of material fact as to advice that defendant was given regarding admission to a rehabilitation program, an evidentiary hearing was not required. State v. Porter, 216 N.J. 343, 354 (2013).

Affirmed.