STATE OF NEW JERSEY v. DANIEL DEHAVEN

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1218-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DANIEL DEHAVEN,

     Defendant-Appellant.
______________________________

                    Submitted November 5, 2018 – Decided November 14, 2018

                    Before Judges Sabatino and Haas.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 11-06-0684.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Mark Zavotsky, Designated Counsel, on the
                    brief).

                    Fredric M. Knapp, Morris County Prosecutor, attorney
                    for respondent (Erin Smith Wisloff, Supervising
                    Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Daniel DeHaven appeals from the Law Division's August 2,

2017 order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

      A Morris County grand jury charged defendant in thirteen counts of a

fourteen-count indictment with two counts of first-degree robbery,  N.J.S.A.

2C:15-1(a) (counts one and two); second-degree robbery,  N.J.S.A. 2C:15-

1(a)(2) (count three); third-degree theft,  N.J.S.A. 2C:20-3(a) (count four); two

counts of second-degree conspiracy to commit robbery,  N.J.S.A. 2C:5-2 and

 N.J.S.A. 2C:15-1(a) (counts five and nine); two counts of third-degree

possession of a weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(d) (counts

six and twelve); two counts of fourth-degree unlawful possession of a weapon,

 N.J.S.A. 2C:39-5(d) (counts seven and thirteen); second-degree attempted

robbery,  N.J.S.A. 2C:5-1(a) and  N.J.S.A. 2C:15-1(a) (count ten); third-degree

attempted theft,  N.J.S.A. 2C:5-1(a) and  N.J.S.A. 2C:20-3(a) (count eleven); and

second-degree distribution of a prescription legend drug,  N.J.S.A. 2C:35-

10.5(a)(4) (count fourteen). 1



 1 On November 18, 2010, defendant was arrested on these charges. At that time,
he was already incarcerated in the Union County jail on an unrelated charge.



                                                                        A-1218-17T4
                                       2
      On March 2, 2012, defendant pled guilty to counts two, six, ten, and

fourteen.2 Defendant's sentencing exposure on just these four charges was fifty

years in prison, together with $380,000 in fines.      However, in return for

defendant's plea, the State agreed to recommend the imposition of an aggregate

fifteen-year sentence, and the dismissal of the other charges. During the plea

colloquy, defendant testified he was satisfied with the services provided by his

attorney.

      In accordance with the parties' agreement, the trial judge sentenced

defendant to fifteen years in prison on count two, subject to the 85% parole

ineligibility provisions of the No Early Release Act (NERA),  N.J.S.A. 2C:43-

7.2, with a five-year period of parole supervision upon release; a concurrent

five-year term on count six; a concurrent ten-year term, subject to NERA, with

a three-year period of parole supervision on count ten; and a concurrent seven-

year term on count fourteen. Therefore, defendant received an aggregate fifteen-

year term as contemplated in his plea agreement.

      According to defendant's pre-sentence report, at the time defendant was

sentenced on May 4, 2012, he had been in the Union County jail from November



2
   Defendant also pled guilty to an unrelated charge set forth in a separate
indictment. That charge is not the subject of this appeal.
                                                                        A-1218-17T4
                                       3
15, 2010 through August 25, 2011, and had begun serving a State prison

sentence on a Sussex County charge on May 6, 2011. Defendant's attorney

discussed the issue of jail credits with the trial judge and the prosecutor at

sentencing. The parties agreed that defendant should receive both jail credits

and gap-time credits. In accordance with this agreement, the judge granted

defendant two days of jail credit from September 15, 2010 to September 16,

2010, and 536 days of gap-time credit from November 15, 2010 to May 3, 2012.

      Defendant did not file a direct appeal. In October 2016, he filed a petition

for PCR. In a certification he submitted in support of the petition, defendant

alleged that his trial attorney provided ineffective assistance by incorrectly

advising him "that jail credits and gap[-time] credits were the same and that [he]

was entitled to 536 days of credits, which would be applied to the 'back end' of

[his] sentence." He also stated that his attorney "misled [him] about the credits

and [he] later learned that jail credits and gap[-time] credits are not applied the

same."

      Significantly, defendant certified that he "d[id] not want to disturb [his]

plea and proceed to trial." (emphasis added). Instead, he asked "that the 536

days that [he] was awarded [be] changed to jail credits, rather than gap[-time]

credits."


                                                                           A-1218-17T4
                                        4
      By way of background, Rule 3:21-8(a) provides that a "defendant shall

receive credit on the term of a custodial sentence for any time served in custody

in jail or in a state hospital between arrest and the imposition of a sentence."

Such credit for pre-sentence custody is commonly called "jail credits."

Richardson v. Nickolopoulos,  110 N.J. 241, 242 (1988). In State v. Hernandez,

 208 N.J. 24, 48 (2011), the Court confirmed that Rule 3:21-8 means "exactly

what it states in plain language[.]" The Court held that a defendant is entitled

to credit on the term of a custodial sentence for the pre-sentence time period

spent in custody. Id. at 37. Jail credits are applied to the NERA or mandatory

minimum portion of a sentence. Id. at 38-39.

      Here, however, defendant had multiple charges and multiple sentencing

dates. In Hernandez, the Court provided guidance on how credits should be

calculated "with respect to multiple charges." Id. at 50. The Court clarified that

"once the first sentence is imposed, a defendant awaiting imposition of another

sentence accrues no more jail credit under Rule 3:21-8." Ibid. Rather, the

defendant is only entitled to gap-time credit under  N.J.S.A. 2C:44-5(b). Id. at

38. This credit is referred to as "gap-time credit" because "it awards a defendant

who is given two separate sentences on two different dates credit toward the

second sentence for the time spent in custody since he or she began serving the


                                                                          A-1218-17T4
                                        5
first sentence." Ibid. Gap-time credits are only applied after the defendant has

completed the NERA or mandatory minimum portion of his or her sentence.

      In order to grant gap-time credit, rather than jail credit, the following three

facts must be found: "'(1) the defendant has been sentenced previously to a term

of imprisonment[;] (2) the defendant is sentenced subsequently to ano ther

term[;] and (3) both offenses occurred prior to the imposition of the first

sentence.'" Id. at 38 (quoting State v. Franklin,  175 N.J. 456, 462 (2003)). If

these three facts are established, "the sentencing court is obligated to award gap -

time credits," rather than jail credits. Ibid.

      With these legal principles in mind, Judge Catherine Enright determined

that the sentencing court had incorrectly calculated the credits due defendant.

The judge found that defendant entered the Union County jail on November 15,

2010 for an offense in that county. He was charged with the Morris County

robberies involved in the indictment that is the subject of the present case on

November 18, 2010, and began accumulating jail credit on that indictment on

that date. On May 6, 2011, defendant was sentenced to three years in State

prison on yet another charge, this one arising out of Sussex County. Therefore,

defendant stopped receiving jail credits on that date.         Thereafter, he was




                                                                             A-1218-17T4
                                          6
sentenced on the Union County charge on April 27, 2012, and sentenced in the

present matter in Morris County on May 4, 2012.

      Accordingly, Judge Enright found that defendant was entitled to jail

credits for the 169-day period between November 18, 2010, the date of his arrest

on the Morris County charges, and May 5, 2011, the date he was first sentenced

on any of the pending charges. She awarded defendant gap-time credits for the

364-day period between May 6, 2011 to May 3, 2012, the day before he was

sentenced on the Morris County charges.         Defendant's PCR attorney, who

assisted the judge and the prosecutor in correcting the mistake, agreed with this

calculation, and the judge ordered that an amended judgment of conviction be

issued to reflect the appropriate credits.

      The attorney also confirmed that defendant "d[id] not want to disturb his

plea" and "d[id] not want to reopen this matter" by withdrawing his plea and

going to trial. Nevertheless, defendant continued to insist that all of his time in

custody should be treated as jail credits based upon his allegation that his plea

attorney had told him there was no difference between jail credits and gap-time

credits.

      Judge Enright rejected this contention in her comprehensive written

decision. The judge concluded that defendant failed to satisfy the two-prong


                                                                           A-1218-17T4
                                         7
test of Strickland v. Washington,  466 U.S. 668, 687 (1984), which requires a

showing that the trial counsel's performance was deficient and that, but for the

deficient performance, the result would have been different.

      With regard to the first prong, the judge found that defendant's contention

that his attorney provided him with incorrect information on the credits was not

supported by the record because the attorney addressed the issue with the

sentencing judge in defendant's presence and sought to ensure his client received

both jail credits and gap-time credits.

      In addition, the judge noted that jail credits are "mandatory, not

discretionary."   Hernandez,  208 N.J. at 37.       Where gap-time credits are

applicable, a court has no discretion to award jail credits instead. Id. at 48-49.

The judge further explained that "any jail and gap[-]time credits could not be

negotiated as they are not discretionary in nature. Thus, [defendant] received

jail and gap[-]time credits based on the trial court's calculations of same, not

because of the quality of his former counsel's representation."          Because

defendant did not want to withdraw his plea, Judge Enright found that defendant

failed to meet the second Strickland prong because he had now received all the

credits due him. This appeal followed.




                                                                          A-1218-17T4
                                          8
      On appeal, defendant again states that he does not wish to withdraw his

plea. He also agrees that his jail and gap-time credits were accurately calculated

by Judge Enright. However, he continues to assert that he "was denied effective

assistance of counsel when counsel affirmatively misinformed him that jail

credits and gap[-]time [credits] were applied equally to his sentence and this his

plea would essentially include the application of 536 days of jail credits." We

disagree.

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash,  212 N.J. 518, 541 (2013); State v. Preciose,  129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell,  126 N.J. 565, 579 (1992).

      The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

that he was denied the effective assistance of counsel." State v. Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999).         Rather, trial courts should grant

evidentiary hearings and make a determination on the merits only if the




                                                                           A-1218-17T4
                                        9
defendant has presented a prima facie claim of ineffective assistance. Preciose,

 129 N.J. at 462.

      We agree with Judge Enright that defendant did not satisfy either pron g

of the Strickland test. We affirm substantially for the reasons set forth in her

thorough written opinion. However, we add the following comments concerning

the second Strickland prong.

      When ineffective assistance of counsel is alleged following a guilty plea,

the defendant proves the second part of the Strickland test by showing "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." State v. Nunez-

Valdez,  200 N.J. 129, 139 (2009) (quoting State v. DiFrisco,  137 N.J. 434, 457

(1994)). Because defendant is unwilling to withdraw his guilty plea and proceed

to trial, he is unable to meet this requirement. This is so because a defendant's

collateral attack of a guilty plea on PCR implicitly assumes a desire to accept

the consequences of a successful application, i.e., a willingness to withdraw the

previous guilty plea and proceed to trial. As Justice Stevens observed in Padilla

v. Kentucky,  559 U.S. 356 (2010), the decision to withdraw a guilty plea can be

a weighty one:

            The nature of relief secured by a successful collateral
            challenge to a guilty plea – an opportunity to withdraw

                                                                          A-1218-17T4
                                       10
            the plea and proceed to trial – imposes its own
            significant limiting principle: Those who collaterally
            attack their guilty pleas lose the benefit of the bargain
            obtained as a result of the plea. Thus, a different
            calculus informs whether it is wise to challenge a guilty
            plea in a habeas proceeding because, ultimately, the
            challenge may result in a less favorable outcome for the
            defendant, whereas a collateral challenge to a
            conviction obtained after a jury trial has no similar
            downside potential.

            [Id. at 372-73.]

      Judge Enright ensured that defendant received all the jail and gap-time

credits legally due him. He was not entitled to any more. Thus, if defendant's

plea counsel had actually provided defendant with incorrect information

concerning the application of credits, the only relief available to him on PCR

would be the withdrawal of his guilty plea. However, defendant insists that the

plea agreement remain in place. Because defendant does not want the only relief

available – vacation of the plea and restoration of the charges – he can certainly

not demonstrate that "but for counsel's unprofessional error[], the result of the

proceeding would have been different." State v. Pierre,  223 N.J. 560, 583 (2015)

(quoting Strickland,  466 U.S. at 694).

      Affirmed.




                                                                          A-1218-17T4
                                         11