STATE OF NEW JERSEY v. AHMED SUNKINS

NOT FOR PUBLICATION WITHOUT THE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.

AHMED SUNKINS, a/k/a

AHMED NYEEM SUNKINS,

Defendant-Appellant.

_______________________________

July 7, 2014

Before Judges Lihotz and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-1232.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel; Matthew P. Tallia, on the brief).

PER CURIAM

Defendant Ahmed Sunkins appeals from the denial of his petition for post-conviction relief (PCR) alleging counsel's affirmative misadvice required his guilty plea to be vacated. Defendant also maintains an evidentiary hearing on his claims should have been conducted. Specifically, defendant raises these issues for our consideration:

POINT ONE

THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING AND DENYING THE PETITION.

POINT TWO

DEFENDANT WAS MISADVISED BY TRIAL COUNSEL AS TO THE EXTENT OF JAIL-TIME CREDIT AVAILABLE TO REDUCE THE NERA PAROLE INELIGIBILITY PERIOD.

POINT THREE

THE COURT ERRED IN ITS ANALYSIS OF THE FOUR FACTORS IN STATE V. SLATER, 198 N.J. 139 (2009).

Following our review of these arguments in light of the record and applicable law, we reject defendant's contentions and affirm.

These facts are taken from the motion record. Defendant entered into a negotiated plea agreement, pleading guilty to armed robbery, N.J.S.A. 2C:15-1. Under the agreement, the State dismissed the remaining two charges and recommended a six-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent to a prior sentence. The judge accepted defendant's plea and imposed the recommended sentence. Defendant was awarded thirty-six days of jail credit and 371 days of gap-time credit.

Defendant did not appeal. He filed a PCR petition on April 15, 2012. He sought to vacate his plea or grant his request to be resentenced because counsel advised he was entitled to 371 days as jail credit reducing the mandatory period of parole ineligibility. Rather, at sentencing the time awarded was gap-time credit.

Judge Alan A. Rockoff denied defendant's PCR motion, determining defendant's allegations were insufficient to sustain PCR and did not warrant an evidentiary hearing. Judge Rockoff noted the negotiated agreement was "extremely favorable" to defendant, who could have been tried and convicted for "a first degree offense of armed robbery[,] which would have put him in prison for . . . [t]wenty years[.]" The judge determined the record was devoid of any hint of "fundamental unfairness" because of counsel's representation. Further, applying the factors set forth in State v. Slater, 198 N.J. 145, 158-61 (2009), the judge found no colorable claim of innocence; the record belied his claims of ineffective assistance; no mitigating factors applied and defendant was informed the six-year negotiated sentence was subject to NERA; and the State would be prejudiced because of the passage of time. This appeal followed.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). To set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently and made serious errors depriving a defendant of his right to effective representation; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Our Court has adopted the Strickland two-part test. State v. Fritz, 105 N.J. 42, 58 (1987).

To establish a prima facie case of ineffective assistance of counsel, Strickland's first prong requires a defendant to demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This demands a showing that counsel was so deficient "that counsel was not functioning as the counsel guaranteed by the Sixth Amendment . . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (internal quotation marks and citation omitted), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[t]his test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (internal quotation marks and citation omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). In this regard, a defendant must articulate "specific facts" that "provide the court with an adequate basis on which to rest its decision" the defendant established a prima facie case of ineffective assistance of counsel. State v. Mitchell, 126 N.J.565, 579 (1992). "[B]ald assertions," unaccompanied by evidential support, are insufficient. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999).

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

After a defendant is sentenced, withdrawal of a guilty plea is available if the defendant's conviction is "manifestly unjust." Slater, supra, 198 N.J. at 156. See also R. 3:21-1. In making such an analysis,

trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of [the] defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the [s]tate or unfair advantage to the accused.

[Slater, supra, 198 N.J. at 157-8 (citation omitted).]

In the context of a PCR petition seeking to set aside a guilty plea, the first Stricklandprong is satisfied when a defendant establishes a reasonable probability he would not have pled guilty but for counsel's errors. Gaitan, supra, 209 N.J.at 351.

On appeal, defendant reiterates the arguments presented before the trial court and maintains the judge erred in denying his PCR request to vacate his guilty plea or grant 371 days of jail credit. Additionally, defendant asserts the trial court erred in failing to conduct an evidentiary hearing. He also maintains PCR is warranted because counsel failed to argue applicable mitigating factors, specifically N.J.S.A.2C:44-(1)(b)(11) (excessive hardship to defendant and his dependents) and (12) (the willingness of defendant to cooperate with law enforcement).

In seeking to set aside his guilty plea, defendant does not advance a colorable claim of innocence to the armed robbery. Rather he suggests only that counsel's misadvice makes enforcement of the plea agreement unfair. We disagree.

Defendant's specific assertion is:

I assert that trial counsel misled me to believe that the 371 days gap-time, which amounts to [one] year of incarceration, would be applied to his [six-]year sentence. My belief was justified in that neither the trial court nor defense counsel explained to me that my credits would be applied to the fifteen percent left on my sentence after he completed the NERA portion. In other words, I was only entitled to gap time off the "back end" of my sentence, to be calculated by the Parole Board, not off the "front end" of my sentence.

First, defendant's certification shows counsel did not advise he was entitled to jail credits; the information imparted was defendant was entitled to gap-time credits. See Booker v. N.J. State Parole Bd., 136 N.J. 257, 268 (1994) (holding gap-time credits apply on the back end of sentences and to impose them on the front end would "lead in many cases to the neutralization of mandatory-minimum periods of parole ineligibility, a result that we believe the Legislature never intended.").

Second, defendant's assertion is refuted by the record. Both the clear terms of the plea agreement and defendant's responses to the court during his plea colloquy unquestionably show he was repeatedly told the recommended sentence was six years of which he was required to serve eighty-five percent prior to parole eligibility. Defendant was informed he faced a possible sentence of twenty-years and was well-aware of the State's evidence, which included the positive identification by the victim, who stated defendant was the assailant who held a gun to his head.

In direct response to the judge's inquiry, defendant affirmatively stated he understood the terms of the plea, including the NERA parole ineligibility period. Finally, in accepting the plea agreement, the judge recited defendant would be awarded "36 days credit and the gap time of 371 days." Defendant did not question that provision at the time it was made or later when he was sentenced. Rather, at sentencing defendant acknowledged he understood the terms of the sentence imposed.

Turning to the sentencing challenge, this issue of applicable mitigating factors should have been raised on direct appeal. Any matter which could have been raised on direct appeal, but was not, cannot serve as grounds for PCR. R.3:22-2; R.3:22-4(a). Here, defendant did not file a direct appeal challenging his sentence.

Notwithstanding this procedural bar, we concur with Judge Rockoff's findings that this record contains no facts to support the application of the claimed mitigating factors. Although defendant reported he was the father of one child, she lived with her mother in Alabama and he was not a source of financial support for the child, as he only worked for five months in 2006-2007. There also is no evidence of defendant's alleged cooperation with law enforcement; pleading guilty alone is insufficient to warrant mitigation. SeeState v. Dalziel, 182 N.J.494, 505-06 (2005) (noting trial court should have considered the defendant's cooperation, although it was "late in the game" and "part of the plea agreement").

Finally, we reject defendant's contention the PCR judge erred in denying his request for an evidentiary hearing. There is no automatic right to an evidentiary hearing as permitted by Rule 3:22-10(b). An evidentiary hearing should be held only when a PCR petition presents material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J.72 (1999). A court has no obligation to grant a request for a hearing when it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief[.]" State v. Marshall, 148 N.J.89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Defendant's assertions have not met this basic standard.

We conclude from our review of the record that defendant failed to present a prima facie case of ineffective assistance of trial counsel. There is no basis to vacate his guilty plea or otherwise set aside his conviction and sentence. Accordingly, Judge Rockoff correctly denied defendant's petition along with his request for an evidentiary hearing. See Preciose, supra, 129 N.J.at 462-63.

Affirmed.