STATE OF NEW JERSEY v. CHRISTOPHER RADFORD

NOT FOR PUBLICATION WITHOUT THE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-2429-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHRISTOPHER RADFORD,

     Defendant-Appellant.
________________________________

              Submitted January 22, 2018 – Decided February 5, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 14-11-0850.

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

              Jennifer   Webb-McRae,    Cumberland   County
              Prosecutor, attorney for respondent (Danielle
              R. Pennino, Assistant Prosecutor, of counsel
              and on the brief).

PER CURIAM

        Defendant    Christopher      Radford    appeals    the   trial   court's

October 21, 2016 denial of his petition for post-conviction relief

("PCR").      We affirm that denial in all but one respect, remanding
the matter for an evidentiary hearing confined to the sole question

of whether defendant's trial counsel provided him with adequate

advice concerning the "gap time" consequences of his guilty plea

and whether defendant suffered any real prejudice from the alleged

lack of such proper advice.

     In 2014, defendant was charged in a multi-count indictment

with three armed robberies and other serious offenses.            The State

negotiated with defense counsel a very generous plea agreement in

which   defendant   pled    guilty   to   second-degree    bank    robbery,


N.J.S.A. 2C:15-1(a)(1) and (2), with the State recommending a

five-year custodial sentence subject to the parole ineligibility

terms of the No Early Release Act ("NERA"), 
N.J.S.A. 2C:43-7.2.

By agreement, all other charges were dismissed.

     At sentencing, defendant received the five-year NERA sentence

consistent   with   his    agreement.     The   court   awarded   defendant

seventy-one days of jail credit and 363 days of gap time credit.

Defendant did not appeal his sentence.

     After sentencing, defendant moved to withdraw his guilty

plea, contending that one of the witnesses at the robbery described

the robber as being six feet tall, whereas defendant is seven

inches shorter than that.      The trial court rejected that asserted

basis for withdrawal because defendant's trial counsel had not



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supplied that discovery to the court in connection with the

application.

     In his ensuing petition for PCR, defendant contends his trial

counsel was ineffective in several respects.         Among other things,

he contends that counsel failed to investigate a potential alibi

witness; failed to explain to him the difference between jail

credits and gap time credits; and failed to provide discovery to

the court to support a colorable claim of innocence at the time

he requested to withdraw his guilty plea.

     The   PCR   judge,   who   was   the   same   judge   who   had     taken

defendant's guilty plea and who had imposed the sentence, denied

the petition in all respects. The judge found no reason to conduct

an evidentiary hearing.

     In his brief on the present appeal, defendant raises the

following points for our consideration:

           POINT I

           DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
           PLEA COUNSEL.

           POINT II

           AS PLEA COUNSEL MISINFORMED DEFENDANT ABOUT
           THE PENAL CONSEQUENCES, DEFENDANT'S GUILTY
           PLEA WAS NOT VOLUNTARILY, KNOWINGLY, AND
           INTELLIGENTLY MADE.




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           POINT III

           DEFENDANT'S ATTORNEY         FAILED    TO      PROPERLY
           INVESTIGATE THE CASE.

           POINT IV

           AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE
           OF BOTH MOTION AND PCR COUNSEL, A REMAND IS
           REQUIRED.

           POINT V

           AS THERE ARE GENUINE ISSUES OF MATERIAL FACTS
           IN DISPUTE, AN EVIDENTIARY HEARING WAS
           REQUIRED.

With the exception of the credits issue, we reject these points

and affirm the trial court substantially for the reasons expressed

in the court's October 21, 2016 oral decision.

     Under the Sixth Amendment of the United States Constitution,

a person accused of crimes is guaranteed the effective assistance

of legal counsel in his defense.         Strickland v. Washington, 
466 U.S. 668, 687 (1984).       To establish a deprivation of that right,

a convicted defendant must satisfy the two-part test enunciated

in Strickland by demonstrating that: (1) counsel's performance was

deficient, and (2) the deficient performance actually prejudiced

the accused's defense.      Ibid.; see also State v. Fritz, 
105 N.J.
 42, 58 (1987) (adopting the Strickland two-part test in New

Jersey).   In   reviewing    such   claims,      courts    apply     a    strong

presumption that defense counsel "rendered adequate assistance and


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made all significant decisions in the exercise of reasonable

professional judgment."        Strickland, 
466 U.S.  at 690.

       The United States Supreme Court has extended these principles

to the representation provided by a criminal defense attorney to

an accused in connection with a plea negotiation.                    Lafler v.

Cooper, 
566 U.S. 156, 162-63 (2012); Missouri v. Frye, 
566 U.S. 134,    144   (2012).   Defendant     has   not   shown     with   "reasonable

probability" that the result would have been different had he

received proper advice from his trial attorney.             Lafler, 
566 U.S. 
at 163 (citing Strickland, 
466 U.S. at 694); see also Lee v. United

States, 582 U.S. ___, ___, 
137 S. Ct. 1958, 1965 (2017) (holding

that,   when   a   defendant   pled   guilty   prior   to    trial   based    on

incorrect advice from counsel about deportation consequences, the

court must determine "whether the defendant was prejudiced by the

'denial of the entire judicial proceeding . . . to which he had a

right.'") (quoting Roe v. Flores-Ortega, 
528 U.S. 470, 483 (2000));

Hill v. Lockhart, 
474 U.S. 52, 58 (1985) (holding that "the two-

part Strickland v. Washington test applies to challenges to guilty

pleas based on ineffective assistance of counsel").

       Defendant certifies that he was not made aware by counsel at

the time of his guilty plea that jail credits are applied to the

"front end" of a custodial sentence, whereas gap time credits only

come off the "back end."       See R. 3:21-8(a) and 
N.J.S.A. 2C:43-2(f)

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(regarding jail credits) and 
N.J.S.A. 2C:44-5(b)(2) (regarding gap

time credits); See also State v. Joe, 
228 N.J. 125, 132-35 (2017)

(explaining the difference between the two).               That technical

distinction sometimes is not easily known or understood by criminal

defendants.

     In the present case, the 363-day period of applicable gap

time is nearly a full year and not an insignificant number.

Because it is possible, albeit unlikely, that defendant would have

rejected or attempted to further negotiate the State's plea offer

had he been advised of the gap time consequences, we conclude the

best course of action on this issue is to remand for an evidentiary

hearing.    See State v. Preciose, 
129 N.J. 451, 462-63 (1992).            At

such a hearing the trial court will explore (1) whether, in fact,

trial   counsel   provided     materially    inaccurate   or   insufficient

advice to defendant about the credits impact of the plea; and (2)

whether    any   lack   of   such   proper   advice   actually   prejudiced

defendant or conversely was insignificant in light of the favorable

agreement made with the State.            We presume the court will make

associated credibility findings on these matters, after hearing

any witnesses presented on remand.

     The balance of defendant's arguments are unpersuasive.           Under

the plea withdrawal factors of State v. Slater, 
198 N.J. 145, 157-

58 (2009), whether defendant had a "colorable claim of innocence"

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stemming from the one lay witness's height estimate of the robber

is not dispositive.    The video of the robbery is likely to have

been key counterproof for the State on that issue.        Moreover, the

remaining Slater factors do not manifestly weigh in defendant’s

favor to meet his heavy burden to withdraw a guilty plea after

sentencing.    Ibid.

     We do not discern any necessity to remand on the alibi claim.

Defendant   provided   no   certification   from   the   supposed     alibi

witness.    "Bald assertions" of fact are insufficient to support a

prima facie claim for PCR.       State v. Cummings, 
321 N.J. Super.
 154, 170 (App. Div. 1999) (noting that PCR relief requires more

than "bald assertions" by a defendant); see also R. 3:22-10(b);

State v. Porter, 
216 N.J. 343, 356-57 (2013) (reaffirming these

principles in evaluating which of a defendant's various PCR claims

warranted an evidentiary hearing).

     No other points raised by defendant warrant discussion here,

there being clearly no merit to them.       R. 2:11-3(e)(2).

     Affirmed.




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