STATE OF NEW JERSEY v. ERIC SEEGERS

NOT FOR PUBLICATION WITHOUT THE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.

ERIC SEEGERS,

Defendant-Appellant.

_______________________________________

April 19, 2016

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-07-0772.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eric Seegers appeals from a September 27, 2013 order denying his petition for post-conviction relief (PCR). We affirm.

We set forth the relevant facts in our prior opinion, State v. Seegers, No. A-2588-07 (App. Div. April 30, 2010) (slip op. at 2 4), certif. denied, 203 N.J. 96 (2010). To summarize, on May 27, 1998, defendant was observed operating a stolen car in Paterson. When detected by police, defendant attempted to flee, and a high-speed chase ensued. Defendant eventually abandoned the vehicle, and was arrested inside a nearby building.

Following a jury trial in absentia, defendant was found guilty of third-degree receiving stolen property, N.J.S.A. 2C:20-7 and -2(b)(2)(b); second-degree eluding, N.J.S.A. 2C:29-2(b); and reckless driving, N.J.S.A. 39:4-96. On the State's application, the trial judge imposed a twenty-year extended term, pursuant to N.J.S.A. 2C:44-3(a), with a ten-year parole bar for the eluding conviction, and a concurrent five-year term for the receiving stolen property conviction. The judge also imposed a $100 fine for the reckless driving conviction.

On direct appeal, defendant raised the following issues

I. The court erred in denying the motion for judgment of acquittal on the second-degree eluding charge because there was no proof that a risk of injury was created.

II. The court failed to charge the lesser-included offense of fourth-degree unlawful taking of a means of conveyance.

III. Seegers was sentenced as a persistent offender to an extended term of 20 years with a 10 year parole bar which term is manifestly excessive. Additionally, the defendant is entitled to gap-time credit and merger of the reckless driving ticket.

A. The Quantum of The Sentence Is Excessive.

B. The Defendant Is Entitled To Gap[-]Time Credit.

C. The conviction for reckless driving should be merged with the second-degree eluding.

In a pro se supplemental brief, defendant raised the following additional issues

I. Defendant was deprived of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and [Art. I, 1] of the New Jersey Constitution was violated when the trial court committed reversible error when it failed to charge the jury that the "identification" of the driver is an element of eluding (Not raised below).

II. Defendant was deprived [OF] due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and [Art. I, 1] of the New Jersey Constitution was violated when the trial court erred in failing to instruct [the] jury on "scienter" as an element of the offense of eluding (Not raised below).

III. The defendant's right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and [Art. I, 1] of the New Jersey Constitution was violated by the trial court's failure to instruct the jury on the law of "bodily injury" even though the risk of injury was an essential element of second[-]degree eluding (Not raised below).

IV. Defendant was deprived due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and [Art. I, 1] of the New Jersey Constitution was violated when the trial court failed to charge the lesser[-]included offenses of careless driving for reckless driving, and constitutes reversible error. (Not raised below).

V. The trial court erred in denying the defendant's motion to acquit against the weight of the evidence.

VI. Defendant [is] entitled to gap[-]time credits pursuant to N.J.S.A.2C:44-5(b)(2).

VII. The sentencing court abused its discretion when it excessively sentenced and punished defendant for invoking his Sixth Amendment right to a jury trial.

VIII.Defendant was deprived due process of law as guaranteed by the Sixth Amendment to the United States Constitution and [Art. I, 9 and 10] of the New Jersey Constitution was violated when defense counsel failed to challenge the identity of the driver on the issue of suggestibility and reliability, and constitute[d] ineffective assistance of counsel.

We affirmed defendant's convictions, but remanded to the trial court for resentencing in accordance with State v. Pierce, 188 N.J. 155, 169 70 (2006), merger of the convictions for reckless driving and eluding, and consideration of defendant's request for gap-time credit. Seegers, supra, (slip op. at 2). At resentencing, defendant received 1,333 days of jail credit and 256 days of gap-time credit.

On February 2, 2012, defendant filed a pro se petition for PCR, asserting the following claims

Point I

Defendant was denied "effective assistance of counsel" as guaranteed by the Sixth Amendment and [art. I, 10 of the] New Jersey Constitution was violated when counsel failed to interview witnesses (victims) as requested by defendant.

Point II

Defendant was deprived due process of law as guaranteed by the Sixth Amendment to the United States Constitution and [art. I 9 and 10] of the New jersey Constitution was violated when defense counsel failed to challenge the identity of the driver on the issue of suggestibility and reliability, and constitute[d] ineffective assistance of counsel.

Point III

Gap[-]time credit pertain[s] to the legality of the sentence imposed and may be raised in a petition for post-conviction relief. State v. Shabazz, 263 N.J.246 (1996).

Judge Daniel J. Yablonsky rejected these arguments and denied defendant's PCR petition without an evidentiary hearing. Addressing Points I and II, Judge Yablonsky determined that defendant's trial counsel adequately cross-examined the witnesses at trial and presented a sufficient defense. As for Point III, Judge Yablonsky confirmed that "the only credits to which [defendant] is entitled are the 256 days which span the time from which he was sentenced on the Bergen County matter on January 13, 2006 through the date of his release on parole from those charges on September 26, 2006."

On this appeal, defendant raises the following issues

Point I: The PCR Court erred when it failed to correct the defendant's illegal sentence.

Point II: The PCR court erred in denying an evidentiary hearing because the defendant had established a reasonable likelihood that his claims of ineffective assistance of trial and appellate counsel would ultimately succeed on the merits.

A. Trial and Appellate Counsel's Failure To Argue For The Correct Jail Credits And Gap-Time Credits.

B. Trial Counsel's Failure To Adequately Contest Certain Trial Testimony And Argue That The Defendant Could Not Have Been Guilty of Second-Degree Eluding.

Having reviewed the record in its entirety, we find defendant's claims of ineffective assistance of counsel to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in the cogent written opinion issued by Judge Yablonsky on September 27, 2013. We add the following comments regarding defendant's argument, raised for the first time on this appeal, that he is entitled to additional jail credits.

Citing to State v. Hernandez, 208 N.J. 24 (2011), defendant claims that he was entitled to an additional 272 days of jail credit for the time he spent in custody in Bergen County prior to the imposition of his first sentence. Defendantis correct that Hernandez stands for the proposition that if a defendant is in jail pending trial in one county, and subject to a detainer on a charge in another county, jail credits are to be awarded with respect to both charges if ultimately sentenced on both. Id. at 49. However, the Supreme Court made abundantly clear that its holding in Hernandez, which was decided on June 8, 2011, only applies prospectively, "except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51. As we decided defendant's direct appeal on April 30, 2010,1 and the Supreme Court denied certification on October 6, 2010, defendant is not entitled to the benefit of the Supreme Court's ruling in Hernandez. Judge Yablonsky correctly determined that defendant's "[a]ppellate counsel successfully secured Petitioner the only gap time credits [to which] he was entitled."

Affirmed.

1 We further note that the trial court concluded defendant's resentencing on August 7, 2010.