STATE OF NEW JERSEY v. BRANDON MUNDY

NOT FOR PUBLICATION WITHOUT THE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.

BRANDON MUNDY,

Defendant-Appellant.

_______________________________________________

December 9, 2015

Submitted September 22, 2015 Decided

Before Judges St. John and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-01-0033.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Brandon Mundy appeals from the October 25, 2013 order of the Law Division denying his petition for post-conviction relief (PCR) without a hearing.

On appeal, defendant raises the following points for our consideration

point one

the pcr court erred when it denied the petition for post-conviction relief, as defendant made a sufficient showing that his attorney was ineffective.

a. The PCR court erred by denying defendant's PCR petition.

B. The PCR court erred by denying defendant an evidentiary hearing.

point two

the Strickland/fritzstandards of trial counsel's effective assistance were not satisfied by the trial court's plea COLLOQUY with the defendant.

We are not persuaded by these arguments and affirm.

I.

Defendant was indicted by a grand jury sitting in Atlantic County and charged with one count of second-degree robbery, N.J.S.A. 2C:15-1. Defendant's counsel negotiated a plea agreement whereby defendant entered a guilty plea to the second-degree charge but would, in the discretion of the sentencing judge, be sentenced within the range of a third-degree offense.

On March 20, 2012, defendant pled guilty. He admitted that on November 21, 2011, he went into the Fair Price convenience store in Atlantic City and had a "verbal altercation" with the storeowner over cigarettes. During the confrontation, defendant struck the owner and took two packs of cigarettes without paying for them. The judge accepted defendant's guilty plea.

On May 11, 2012, defendant was sentenced to three years in prison with a requirement under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, that he serve eighty-five percent of the term. Defendant appealed his sentence and we affirmed. State v. Mundy, No. A-0370-12 (App. Div. Dec. 10, 2012).

In February 2013, defendant filed a pro se petition for PCR claiming that his plea counsel was ineffective because he did not properly explain parole ineligibility under NERA and did not apply for pretrial intervention. After the appointment of counsel, a brief was submitted raising the additional ineffective assistance arguments that plea counsel failed to move to dismiss the indictment; failed to discuss defendant's case with the prosecutor before the plea date; and did not realize that defendant would receive a custodial sentence.

After hearing oral argument, the PCR judge denied defendant's petition without an evidentiary hearing.

II.

To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Taccetta, 200 N.J. 183, 193 (2009).

The United States Supreme Court has applied the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. Where an ineffective assistance claim arises from a guilty plea, the defendant must prove both counsel's constitutionally-deficient performance and also a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); accord State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Defendant concedes that the agreement negotiated by plea counsel "provided some advantage to defendant regarding his total jail exposure," but argues "that striking such a deal at such an early stage of the post-grand jury proceedings without exploring the discovery may have been less advantageous to defendant." Specifically, defendant alleges that his plea counsel did not interview the robbery victim, failed to review the grand jury transcripts, and did not explore the mitigating circumstance of defendant's physical disability. Defendant also notes two errors in the plea agreement. Paragraph seven contains the question, "Did you enter a plea of guilty to any charges that require a mandatory period of parole ineligibility or a mandatory extended term?" Neither "[Yes]" nor "[No]" is circled; instead, there is a handwritten "N/A" at the end of the section. Paragraph eight contains the question, "Are you pleading guilty to a crime that contains a presumption of imprisonment which means that it is almost certain that you will go to state prison?" After this question, "[No]" is circled. Defendant also signed a "Supplemental Plea Form for No Early Release Act (NERA) Cases" indicating that he understood that he was pleading guilty to second-degree robbery and that he will be required to serve eighty-five percent of the sentence imposed for that offense.

The PCR judge found that defendant had entered the guilty plea knowingly and voluntarily. He then addressed the first Strickland prong, and concluded that plea counsel had taken "a classical second-degree robbery, a theft with force" and negotiated a plea with third-degree exposure and then successfully argued for a sentence at the lowest end of the range

So not only did he get it a degree lower, but that he was then able to come and argue at the time of sentence this should be the lowest end of the third degree because this is not a bad guy, he does this, he does that, he doesn't have a bad record, he's not extended term or anything like that. All right.

So you start with that proposition, so he didn't do too bad there. Okay. He took a second-degree offense, got it pled to a third-degree open plea where the defendant ended up with the lowest end of the third degree. So we start with that.

The judge found that even if defendant established the first prong as a result of discrepancies in the plea agreement, defendant could not prove the second Strickland prong because he cannot show that he was prejudiced by alleged deficient performance of his plea counsel. We agree.

The supplemental plea form and defendant's responses during the plea colloquy clearly evidence his understanding of the sentence that he would receive under the plea agreement

Q: Do you understand that your plea agreement is to be sentenced as a third-degree offender in the discretion of the Court?

A: Yes.

Q: And you understand that's between three and five years in state prison and that also it's under the No Early Release Act where you have to serve a certain percentage of the sentence?

A: Yes.

Q: And what is that percentage?

A: Eighty-five.

Q: Right. And you also understand that there's a three-year period of what's called parole supervision upon your release?

A: Yes.

Q: And you understand that means that if, in fact, you violate any terms or conditions of your parole, your parole may be revoked and you may be sent back to prison to serve the remaining portion of the parole supervision even if you completed serving the original sentence?

A: I understand that.

Defendant's claim that he lacked a clear understanding of the sentence and exposure because of plea counsel's inadequate performance finds no support in the record. Defendant's remaining arguments lack sufficient merit to warrant discussion in our opinion beyond the following limited comments. R. 2:11-3(e)(2).

It would not be unreasonable to conclude that plea counsel's attempt to obtain a probationary sentence for defendant, which he now portrays as an example of counsel's deficient performance, proves once again that no good deed goes unpunished. The PCR judge recognized that plea counsel was simply asking for a more lenient sentence than was permissible under NERA. We reject defendant's claim that his counsel's zealous advocacy on his behalf should now be interpreted as evidence of his deficient performance.

We are satisfied that defendant has not presented a sufficient basis to grant PCR and the motion judge properly denied his petition without a hearing.

Affirmed.