STATE OF NEW JERSEY v. TIMOTHY M. CONNELL
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0498-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY M. CONNELL,
Defendant-Appellant.
___________________________________
Submitted January 9, 2018 – Decided January 29, 2018
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
10-11-3173.
Joseph E. Krakora, Public Defender, attorney
for appellant (Andrew R. Burroughs, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Patrick D. Isbill,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Timothy M. Connell appeals from an order entered
by the Law Division on July 29, 2016, which denied his petition
for post-conviction relief (PCR). We affirm.
Defendant entered a plea of guilty to first-degree armed
robbery,
N.J.S.A. 2C:15-1, and second-degree robbery,
N.J.S.A.
2C:15-1. Pursuant to a negotiated plea agreement, defendant
received a sentence of eighteen years of incarceration, with an
eighty-five percent period of parole ineligibility, pursuant to
the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, for the first-
degree armed robbery. He also received a concurrent sentence of
ten years of incarceration subject to NERA on the second-degree
robbery. The judgment of conviction states the sentences are to
run concurrent with any sentence to be imposed for a federal parole
violation.
Defendant testified to the following factual basis in support
of his guilty plea. He admitted to being at a TD Bank on August
27, 2009, in the Township of Cherry Hill when he encountered a
bank teller. Defendant testified he attempted to commit a robbery
of the bank using a handgun to threaten and ultimately force the
bank teller to comply with his demand.
Defendant admitted to being at a second TD Bank on August 28,
2009, in Gloucester Township, at which he attempted to commit a
robbery. Specifically, he admitted he wore a mask and presented
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a bag to the bank teller demanding she put money in it. Defendant
admitted that entering the bank with a mask over his face and
handing the teller a bag before telling her to put money in it was
a threat.
Defendant appealed his sentence. The appeal was heard on our
Excessive Sentence Oral Argument (ESOA) Calendar, and we affirmed
the sentence. State v. Connell, No. A-0766-11 (App. Div. April
17, 2012).
Thereafter, defendant filed a PCR petition in which he alleged
he was denied the effective assistance of counsel. He claimed his
attorney misled him to believe that the State sentence would run
concurrently with any sentence imposed for a federal parole
violation. Defendant argued his plea was not voluntary,
intelligent, or knowing, and sought an evidentiary hearing on the
petition. The PCR judge found defendant failed to establish a
prima facie claim of ineffective assistance of counsel and denied
the petition without a hearing.
On appeal, defendant raises the following arguments:
POINT I – DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.
POINT II – DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF IS NOT PROCEDURALLY BARRED.
POINT III – AS DEFENDANT'S ATTORNEY
AFFIRMATIVELY MISLED HIM ABOUT THE COLLATERAL
CONSEQUENCES OF ENTERING A GUILTY PLEA,
3 A-0498-16T1
DEFENDANT'S GUILTY PLEA WAS NOT VOLUNTARILY,
INTELLIGENTLY, AND KNOWINGLY MADE.
POINT IV – DEFENDANT DETRIMENTALLY RELIED UPON
THE STATE'S REPRESENTATIONS TO ENTER A GUILTY
PLEA.
POINT V – AS THERE ARE GENUINE ISSUES OF
MATERIAL FACTS IN DISPUTE, AN EVIDENTIARY
HEARING IS REQUIRED.
I.
The PCR process affords an adjudged criminal defendant a
"last chance to challenge the 'fairness and reliability of a
criminal verdict. . . .'" State v. Nash,
212 N.J. 518, 540 (2013)
(quoting State v. Feaster,
184 N.J. 235, 249 (2013)); see also R.
3:22-1. As to our standard of review, "where the [PCR] court does
not hold an evidentiary hearing, we may exercise de novo review
over the factual inferences the trial court has drawn from the
documentary record." State v. O'Donnell,
435 N.J. Super. 351, 373
(App. Div. 2014) (citing State v. Harris,
181 N.J. 391, 420-21
(2004)).
"Post-conviction relief is neither a substitute for direct
appeal, [Rule] 3:22-3, nor an opportunity to relitigate cases
already decided on the merits, [Rule] 3:22-5." State v. Preciose,
129 N.J. 451, 459 (1992).
Consequently, petitioners may be procedurally
barred from post-conviction relief under Rule
3:22-4 if they could have, but did not, raise
4 A-0498-16T1
the claim in a prior proceeding, unless they
satisfy one of the following exceptions:
(a) that the ground for relief not
previously asserted could not
reasonably have been raised in any
prior proceeding; or (b) that
enforcement of the bar would result
in fundamental injustice; or (c)
that denial of relief would be
contrary to the Constitution of the
United States or the State of New
Jersey.
[Ibid.]
II.
Defendant argues the PCR judge should have granted him an
evidentiary hearing to address his claim trial counsel was
ineffective for misleading him about the collateral consequences
of entering a guilty plea. We disagree.
Rule 3:22-10(b) provides:
A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
To establish a prima facie case, defendant
must demonstrate a reasonable likelihood that
his or her claim, viewing the facts alleged
in the light most favorable to the defendant,
will ultimately succeed on the merits.
5 A-0498-16T1
Furthermore, Rule 3:22-10(e) provides the court shall not grant
an evidentiary hearing if: (1) it "will not aid [in] the court's
analysis of the defendant's entitlement to post-conviction
relief;" (2) "the defendant's allegations are too vague,
conclusory or speculative; or" (3) the defendant is attempting to
use the hearing to explore or investigate other possible
unsubstantiated PCR claims.
The decision of whether to hold an evidentiary hearing on a
PCR petition is committed to the sound discretion of the PCR judge.
State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). The
judge should grant an evidentiary hearing and make a determination
on the merits of a defendant's claim only if the defendant has
presented a prima facie claim of ineffective assistance. Preciose,
129 N.J. at 462.
In determining whether a prima facie claim has been
established, the facts should be viewed "in the light most
favorable to a defendant." Id. at 462-63. Additionally, "[a]
petitioner must establish the right to such relief by a
preponderance of the credible evidence." Id. at 459. "To sustain
that burden, specific facts must be alleged and articulated" to
"provide the court with an adequate basis on which to rest its
decision." State v. Mitchell,
126 N.J. 565, 579 (1992).
6 A-0498-16T1
To establish ineffective assistance of counsel, defendant
must satisfy a two-prong test:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
[Strickland v. Washington,
466 U.S. 668, 687
(1984); State v. Fritz,
105 N.J. 42, 52 (1987)
(quoting Strickland,
466 U.S. at 687).]
Counsel's performance is evaluated with extreme deference,
"requiring 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.'"
Fritz,
105 N.J. at 52 (quoting Strickland,
466 U.S. at 688-89).
"To rebut that strong presumption, a [petitioner] must establish
. . . trial counsel's actions did not equate to 'sound trial
strategy.'" State v. Castagna,
187 N.J. 293, 314 (2005) (quoting
Strickland,
466 U.S. at 689). "Mere dissatisfaction with a
'counsel's exercise of judgment' is insufficient to warrant
overturning a conviction." Nash,
212 N.J. at 542 (quoting State
v. Echols,
199 N.J. 344, 358 (2009)).
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To demonstrate prejudice, "'actual ineffectiveness' . . .
must [generally] be proved[.]" Fritz,
105 N.J. at 52 (quoting
Strickland,
466 U.S. at 692-93). Petitioner must show the
existence of "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Ibid. (quoting
Strickland,
466 U.S. at 694). Indeed,
[i]t is not enough for [a] defendant to show
that the errors had some conceivable effect
on the outcome of the proceeding. Virtually
every act or omission of counsel would meet
that test and not every error that conceivably
could have influenced the outcome undermines
the reliability of the result of the
proceeding.
[Strickland,
466 U.S. at 693 (citation
omitted).]
Here, the PCR judge noted the State cannot bind the federal
prosecutor. The judge stated trial counsel represented defendant
during the entry of his guilty plea and also at sentencing in
state court for this matter, but that "[t]here [wa]s nothing in
this state plea and this state sentence that could bind any federal
authorities" nor was there any "legal authority" for such a
proposition. The PCR judge held "[t]he fact that in this sentence
. . . there was some knowledge that there was a federal parole
violation pending . . . [indicates trial counsel] did everything
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he could to at least have the [S]tate agree that this would run
concurrent to any federal sentence."
Therefore, the PCR judge concluded:
I think, in this case, the attorney did
everything he could to ensure – that was under
his authority and under the state court's
authority to get the best deal that he could
in vis-à-vis, the federal sentence. . . .
[T]here's really nothing that could have bound
the federal authorities from making anything
concurrent to the state. And . . . maybe once
[defendant] goes to answer to the federal
parole violation, they would be willing to
make it concurrent to the state sentence and
be willing to give him credit. . . . [I]t's
the opinion of this Court that neither
[defendant's] attorney at the plea and
sentence, nor the sentencing Court, could have
made the federal authorities act in any other
way and make it concurrent to the federal
sentence if the federal authorities feel that
it should not be a concurrent sentence to the
state sentence.
Ultimately, the PCR judge found that "there [was] no meeting of
the minds yet on the federal matter so it could be that [defendant]
eventually, when he answers to the federal charge, will have
something run concurrent to the state charge[.]"
We agree. Defendant's adult presentence report made
defendant aware his federal case, per his parole officer, would
be stayed until defendant completed his state sentence and
supervision would continue thereafter. The presentence report
includes no representations that the federal matter was in some
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way resolved or that any potential federal sentence would run
consecutive or concurrent to the sentence imposed in this case.
Furthermore, the sentencing court confirmed defendant understood
this when it reviewed the terms and conditions of the plea
agreement with defendant directly before accepting the plea.
The sentencing judge asked defendant, "You do know that this
could trigger a violation of your federal parole, correct?"
Defendant then replied, "Yes, Your Honor." The judge stated, "You
could receive consecutive sentences. And there are some other
charges in there that could also be consecutive, and all those
could be consecutive to your federal sentence, as well, do you
understand that?" Defendant replied, "Yes."
Thereafter, on the record, defendant signed the plea forms
acknowledging he understood his pending federal parole violation
was yet to be resolved and that there was no promise or
representation, express or implied, binding the federal court to
impose a specific sentence to any degree of certainty, concurrent
or otherwise. When asked whether he was satisfied with trial
counsel's services and if counsel had answered all of his
questions, defendant twice answered, "Yes, Your Honor."
Defendant's PCR petition failed to demonstrate actual
ineffectiveness of counsel or a reasonable probability the outcome
would have been different had trial counsel alternatively informed
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him that his federal charge could run consecutively to his state
plea. The PCR judge correctly found defendant did not present a
prima facie case of ineffective assistance of counsel and an
evidentiary hearing was not required.
Moreover, defendant's argument that he did not enter a
knowing, voluntary, and intelligent guilty plea is without merit.
At his sentencing hearing, when the judge asked whether there was
anything defendant wanted to say prior to the court imposing the
sentence, defendant stated:
You know, you gave me a lot of sentencing
scenarios during our . . . appearances here.
That was a heavy influence of my . . .
willingness to plea. I wrote you letters
where from the second degree to the first one
was - actually, I was considering trial on the
first degree and the thing that persuaded me
was your sentencing scenarios, the fact that
you would give me the extended term on a
conviction.
Defendant did not "reasonably and detrimentally" rely on the
State's representation in entering his guilty plea. The record
demonstrates his plea was knowing, voluntary, and intelligent.
Furthermore, defendant's argument that his claims should not
be procedurally barred as a result of the ineffective assistance
of appellate counsel as part of the ESOA hearing are without merit.
Defendant's arguments could have been raised on direct appeal. "A
petitioner is generally barred from presenting a claim on PCR that
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could have been raised at trial or on direct appeal[.]" Nash,
212 N.J. at 546 (citing R. 3:22-4(a)).
The PCR judge did not find defendant's claims were
procedurally barred. Moreover, defendant fails to demonstrate
that appellate counsel's decision not to raise defendant's
purported claims on direct appeal was anything other than the
exercise of reasonable professional judgment and sound strategy,
or that had appellate counsel raised the issues, there was a
reasonable probability of a different outcome on appeal. State
v. Hess,
207 N.J. 123, 147 (2011); Fritz,
105 N.J. at 52.
Defendant's remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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