STATE OF NEW JERSEY v. LAVAR WADE

NOT FOR PUBLICATION WITHOUT THE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.

LAVAR WADE, a/k/a LEVAN WADE,

ALI WADE, LELAN WADE, SHAWN SCOTT,

LEVAR WADE, LEVAR A. WADE,

LAVAR A. WADE, ALI WADE,

LAVER WADE, MARC THOMPSON,

WADE LEVAN, and SHAWN B. SCOTT,

Defendant-Appellant.

September 19, 2016

Submitted September 7, 2016 Decided

Before Judges Alvarez and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-09-1309 and 06-10-1620.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lavar Wade appeals from the April 24, 2014 Law Division order denying his petition for post-conviction relief (PCR), and his motion to set aside a guilty plea. We affirm.

In accord with his negotiated agreement with the State on a charge of first-degree carjacking, N.J.S.A. 2C:15-2, defendant was sentenced on March 7, 2011, to a term of twelve years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. That same day, he was also sentenced to a concurrent term of five years imprisonment on an unrelated indictment charging him with third-degree threats to kill, N.J.S.A. 2C:12-3(b). Both sentences were to be served concurrent to a ninety-six-month federal sentence defendant was then serving.

Defendant's plea form states that his New Jersey sentences "will be run concurrent to the Federal sentence that he is presently serving ([ninety-six] months). Defendant's max date is 2015." Pursuant to the plea agreement, the State dismissed the remaining counts of both indictments, including charges of first-degree robbery, second-degree kidnapping, and second-degree possession of a handgun for unlawful purposes. Also dismissed were counts of first-degree conspiracy to commit murder-gang-related, second-degree attempted theft by extortion-gang-related, and two counts of third-degree terroristic threats-gang-related. Lastly, a third indictment charging him with second-degree certain persons not to possess was dismissed.

The carjacking charges arise from defendant's robbery at a car dealership. While in a vehicle he was purportedly test driving, he threatened the salesman with a handgun, ordered him out of the car, and drove away. Defendant was arrested ten days later in New York State.

Defendant, believed to be a high-ranking member of the Bloods criminal street gang, was intercepted during a wiretap investigation, attempting to extort $1000 from the father of a cooperating witness by threatening to murder the family. This resulted in the threats to kill indictment.

On May 8, 2013, defendant appealed his sentence on the excessive sentence calendar (ESOA). See R. 2:9-11. Defendant's attorney argued

that it was [defendant's] understanding that his sentence would be calculated in such a way as . . . to receive complete concurrency with the federal sentence.

. . . [T]he defendant is adamant about this. I understand he's willing to try to retrack [sic] his plea as a result.

What I would argue to Your Honors is that there is enough ambiguity in the transcripts and in the plea documents not to order that the plea be vacated, but to remand -- to necessitate a remand to the sentencing court for a clarification.

. . . Frankly, I don't understand the relevance of [defendant's max date of 2015] unless it has some reference to an end date for the sentence that's keyed to the federal sentence.

The State responded that defendant's argument was that the plea agreement called for a "coterminous" sentence, "which was never promised anywhere. He was promised concurrent. This is [a] very separate offense from the federal offense." When defendant entered his guilty plea to the New Jersey charges, he had already served four years of his federal sentence.

At the PCR hearing, defendant contended that his attorney misrepresented the negotiated sentence. He claimed that his attorney assured him that he would receive actual credits towards his state sentence for the time served on his federal sentence. He also argued that the attorney's misrepresentation constituted a basis for withdrawal of his guilty plea.

The judge found no merit in defendant's arguments. Referring to the transcript of the proceedings when defendant entered the guilty plea, it was clear the terms of the agreement were explained

COURT: And [the State has] also agreed that they're going to dismiss all the other charges that you're not pleading guilty to and that this sentence is going to [r]un concurrent or at the same time as the Federal sentence that you're serving. You understand that, right?

PETITIONER: Yes.

COURT: Now, did the State make or did anyone make any other promises or any other representations to get you to plead guilty other than what we just talked about?

PETITIONER: No.

Furthermore, the PCR judge observed that through "the competence of his trial attorney," defendant obtained a twelve-year NERA sentence to run concurrent to a ninety-six-month federal sentence, as opposed to his "maximum penal exposure of at least [seventy] years in [s]tate [p]rison," to be served consecutive to the federal sentence. Thus the PCR court found defendant entered into the guilty plea with a correct understanding of his sentence, that his attorney did not mislead him, and that he had not established the prima facie elements entitling him to relief.

The judge also denied defendant's application to withdraw his guilty plea under State v. Slater, 198 N.J. 145 (2009). He said that no discussion of the Slater factors was warranted because a petition for PCR under Rule 3:22-3 is the exclusive means of challenging a judgment of conviction. The judge also concluded that under Rule 3:22-4 defendant was barred from raising the jail credits argument because it had been previously addressed on appeal. The State concedes there are no procedural bars, but contends that the court adequately addressed the Slater issue by its discussion of the merits of the PCR application.

Now on appeal, defendant raises the following issues for our consideration

POINT I

THE PCR COURT ABUSED ITS DISCRETION BY REFUSING TO HOLD AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

THE DEFENDANT'S GUILTY PLEA WAS NOT KNOWING, VOLUNTARY, AND INTELLIGENT AS REQUIRED BY [RULE] 3:9-2 AND, THEREFORE, THE DEFENDANT'S CONVICTION SHOULD BE REVERSED AND REMANDED TO ALLOW THE DEFENDANT TO WITHDRAW HIS GUILTY PLEA.

POINT III

THE PCR COURT ERRED BY FINDING THAT DEFENDANT'S PCR PETITION WAS PROCEDURALLY BARRED BY [RULE] 3:22-4.

It is well-established that in order to prevail on a PCR petition alleging ineffective assistance of counsel, a defendant must demonstrate that he received substandard professional assistance and that prejudice resulted from the substandard representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The Strickland standard was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

When raising an ineffective assistance of counsel argument in the context of guilty pleas, a defendant must establish that

(i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases," Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973); and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled 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).]

[State v. DeFrisco, 137 N.J. 434, 457 (1994).]

A defendant "bears the burden of proving his or her right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). An evidentiary hearing is required when, viewing the facts in the light most favorable to defendant, post-conviction relief would be warranted. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). This demonstration of a prima facie case, however, requires more than bald assertions. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Bare assertions simply do not satisfy the standard and do not establish a prima facie case of ineffectiveness. Id. at 170-71.

I.

Defendant argued before the ESOA panel that he understood the plea agreement to mean that the New Jersey sentence was coterminous with the federal sentence. This is a different argument than the one being made now on PCR, namely, that defendant was misled by his attorney into believing he would receive roughly four years of credit on his federal prison time towards his New Jersey sentence.

That distinction aside, the record makes clear that defendant was advised at the time the plea was taken that his sentence would only be concurrent to the federal sentence, not that the federal sentence would end at the same time as the New Jersey sentence, or that the federal jail credits would offset and reduce defendant's New Jersey prison time. Defendant indicated he understood the sentences were to run concurrent and also stated that no other promises or representations had been made to him.

Moreover, we do not agree with defendant's argument that the mention on the plea form of the year 2015 in some fashion established an "ambiguity" that should have warranted a remand from the ESOA panel. To the contrary, in the context of the language in the plea form, it seems clear that the reference was simply to provide an end date for the federal sentence. A competent attorney would calculate that end date in order for his client to make an informed decision. By knowing the end date of the federal sentence, defendant would know the time he would be serving in a New Jersey facility on the New Jersey sentence.

Defendant's claims regarding misrepresentations by his attorney are also not corroborated by the record, and are in fact contradicted by it. Even viewing the facts in the light most favorable to defendant, he has failed to establish by a preponderance of the evidence any possibility that but for his unsubstantiated allegations he would have taken the matter to trial. The nature and weight of the State's proofs on just these two indictments highlight the improbability of defendant's claims. On one indictment, defendant's threats were recorded as part of a greater investigation regarding gang activities. On the other indictment, defendant carjacked a vehicle during a test drive accompanied by a salesman who would have spent some time in defendant's company and would have readily been able to identify him as a result.

Defendant received the benefit of a very favorable plea bargain. The claimed misrepresentations by counsel are refuted by the record. We are satisfied that there was no reasonable probability that defendant would have gone to trial but for these claimed errors. He has failed to establish a prima facie case of ineffective assistance of counsel and was properly denied an evidentiary hearing. See ibid.

II.

Defendant also contends that he entered into his guilty plea based on his mistaken understanding regarding the jail credits, and that thus he should be permitted under Slater to withdraw. It bears repeating that defendant's application for PCR and to withdraw a guilty plea were cognizable on defendant's application. The two require separate consideration, and are decided employing different analyses. See State v. O'Donnell, 435 N.J. Super. 351, 370-71 (App. Div. 2014).

It is not clear if the judge properly considered defendant's application to withdraw his guilty plea under Slater, however, defendant in this case falls woefully short of meeting that standard. The judge's discussion of the PCR application, with which we agree, disposes of defendant's request to withdraw his guilty plea.

In this case, defendant has not made a colorable claim of innocence, and would have some difficulty doing so in light of the recordings of his threats to a suspected informant's family, and in the face of the salesman's identification. The Slater analysis requires that defendant first assert a colorable claim of innocence. Slater, supra, 198 N.J. at 157. Indeed, in Slater, the Court stated that a defendant "must present specific, credible facts and, where possible, point to facts in the record that buttress [his] claim." Id. at 158. This major shortcoming leads us to conclude that no basis was presented for a withdrawal of defendant's guilty plea as no "particular, plausible facts []" regarding defendant's innocence have even been mentioned. See id. at 159.

Apart from defendant's failure to meet the first and most important prong of the Slater test, he also fails to meet the second prong, "the nature and strength of defendant's reasons for withdrawal[.]" Ibid. He claims he is entitled to withdraw from his guilty pleas because of his mistaken understanding, whether it be that he was advised that the New Jersey sentence would be coterminous with the federal sentence, or that he would receive credit for time served on the federal sentence towards his New Jersey sentence. The record contradicts both theories.

It is also noteworthy that when defendant was sentenced on March 7, 2011, the court specifically said ". . . I'm going to impose the sentence as recommended. I will insure that it's concurrent to all the time you are serving -- the time that you are serving for the federal government." The judge went on to say that the sentences would run concurrent to each other and "shall run concurrent to any time you are serving in either state or federal. And you'll be given credit for -- I don't think there is any credit on this matter because you are serving a sentence."

Both judgments of conviction entered that day stated that the sentences were concurrent to defendant's federal sentence. Neither judgment of conviction indicated any credits on the relevant form, and in fact state that defendant's twelve-year sentence was to be served without credits whatsoever, as defendant was never detained on those charges. Thus defendant's reason for withdrawal, that he entered his guilty pleas based on a misunderstanding of how his jail credits would be calculated, is fatally flawed. The transcript of the plea, the transcript of the sentence, the plea form, and the judgments of conviction all make clear that defendant knew he would not receive credit from the federal sentence on the New Jersey imprisonment and that it would not be run coterminous.

The next Slater factor, that this was a negotiated plea, is one typically given minimal weight. See Slater, supra, 198 N.J. at 160.

Lastly, withdrawal of the plea would result in prejudice to the State, as the indictments were issued in 2006, although defendant did not enter his guilty plea until 2011. The notion that the State would be able to try these matters some ten years beyond the occurrences establishes substantial prejudice. See id. at 161. Defendant has not demonstrated that a manifest injustice would result if his guilty plea is not vacated. R. 3:21-1; Slater, supra, 198 N.J. at 156.

Affirmed.