STATE OF NEW JERSEY v. SPILLERMAN HILL

NOT FOR PUBLICATION WITHOUT THE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-2743-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SPILLERMAN HILL, a/k/a
SPILLERMAN A. HILL, SPILLERMAN
ADOLPH, SPELLERMAN A. HILLS,
JULIUS SPILLERMAN, JULIUS
SHADOOL, CHUCKIE HILL, SHADOOL
HILL, SPELLERMAN A. HILL,
JULIOUS SPILLERMAN, JULIOUS
HILL and SPILLERMAN HILL, JR.,

     Defendant-Appellant.
______________________________

              Submitted April 10, 2018 – Decided May 4, 2018

              Before Judges Fisher and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 13-
              03-0604.

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

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Barbara
              A.   Rosenkrans,  Special  Deputy   Attorney
         General/Acting Assistant Prosecutor, on the
         brief).

PER CURIAM

    Defendant   appeals    the   denial   of   his   petition   for     post-

conviction relief (PCR), arguing:

         POINT I

         BECAUSE COUNSEL DID NOT CORRECTLY EXPLAIN TO
         HIS CLIENT THE RULES GOVERNING THE AWARDING
         OF JAIL CREDITS AND THE EFFECT THEY WOULD HAVE
         ON THE SENTENCE TO BE SERVED, PERFORMANCE OF
         TRIAL COUNSEL WAS INEFFECTIVE.

         POINT II

         BECAUSE THE DEFENDANT MADE A PRIMA FACIE
         SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL
         COUNSEL, THE COURT MISAPPLIED ITS DISCRETION
         IN DENYING [PCR] WITHOUT CONDUCTING A FULL
         EVIDENTIARY HEARING.

We determine defendant has not met the prejudice prong of the
                           1
bedrock Strickland-Fritz       standard and affirm the denial of his

PCR application without an evidentiary hearing.

    Absent an evidentiary hearing, our review of the factual

inferences drawn by the judge from the record – as well as the




1
  The only part of the two-prong standard applicable here is the
requirement that defendant prove he suffered prejudice from
counsel's deficient performance, Strickland v. Washington, 
466 U.S. 668, 691-92 (1984), which affected the outcome of the case,
State v. Fritz, 
105 N.J. 42, 59 (1987).


                                    2                                 A-2743-16T4
judge's legal conclusions — is de novo.            State v. Blake, 
444 N.J.

Super. 285, 294 (App. Div.), certif. denied, 
226 N.J. 213 (2016).

      Defendant was sentenced pursuant to a plea agreement2 to

concurrent   thirteen-year    State       prison    terms   with   eighty-five

percent of parole ineligibility per the No Early Release Act,


N.J.S.A. 2C:43-7.2, on two second-degree robberies charged in

separate indictments.3       The sentence was also concurrent to a

sentence imposed in Hudson County for second-degree robbery, and

to parole violations – that were triggered prior to this sentence

— for a juvenile homicide adjudication and numerous robbery and

assault convictions.4      Defendant contends his plea counsel "did

not   explain,"     "incorrectly   explained,"       "failed   to   correctly

explain," or "failed to clearly explain" the sentencing law,

including    "the    non-applicability      of     jail   credit   to   persons

incarcerated on parole warrants."


2
  The State recommended a fifteen-year term with eighty-five
percent parole ineligibility.     Defendant faced a mandatory
extended-term pursuant to the Three Strikes Law, 
N.J.S.A. 2C:43-
7.1(b).
3
  We affirmed the sentence on an excessive sentencing calendar,
remanding it only for vacation of the Law Enforcement Officers
Training and Equipment Fund penalty, 
N.J.S.A. 2C:43-3.3, on one
indictment. State v. Hill, No. A-4660-14 (App. Div. Feb. 9, 2016).
4
  Defendant, as a juvenile, received an indeterminate term not to
exceed thirty-three years in 1983 for the homicide adjudication;
as an adult, he received lesser sentences in 1989 and 1996 for the
numerous robbery and aggravated assault convictions.

                                      3                                 A-2743-16T4
     The judge – who also took defendant's plea and sentenced him

– acknowledged defendant's plea colloquy averment that his counsel

advised him that, although he was incarcerated on a technical

parole violation, he would receive gap time credits.        But the

judge recalled debunking that alleged advice during the plea

colloquy during which she told defendant, "Once a parole violation

hits, you're not getting any credit. . . . [O]nce a parole hit

occurs, there's no time that's credited."   As the judge commented,

"While it's true that [defendant] had questions for the [c]ourt,

he appeared very satisfied with the answers provided to him.     And,

subsequently, indicated his desire to plead guilty."      The judge

concluded defendant failed to establish – as required under our

Supreme Court's holding in   State v. DiFrisco, 
137 N.J. 434 (1994)5




5
  A defendant who seeks to vacate a guilty plea because of
ineffective assistance of counsel must prove:

          (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 (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 (1985).

          [DiFrisco, 
137 N.J. at 457 (alteration in
          original).]


                                 4                           A-2743-16T4
— there was a reasonable probability that, but for counsel's

errors, he would have rejected the plea offer and gone to trial.

     From our de novo review of the record, we note defendant had

just been sentenced in Hudson County to thirteen years in State

prison after pleading guilty to an amended charge of second-degree

robbery.   He also faced — besides the two indictments to which he

pleaded guilty — two indictments that were dismissed pursuant to

this plea agreement, both of which charged second-degree robbery;

two counts in one indictment, one count in the other.            The

indictments here charged crimes that occurred on separate dates

and could have resulted in consecutive sentences.   Defendant faced

mandatory extended terms under the Three Strikes Law.       And the

judge reduced the State's offer of fifteen years to thirteen years.

     We therefore affirm the judge's well-supported determination

that defendant failed to establish that, but for counsel's error,

he would not have pleaded guilty to a deal that netted a thirteen-

year aggregate sentence on all four matters, concurrent to both

the parole violations and the Hudson County sentence.     State v.

O'Donnell, 
435 N.J. Super. 351, 371 (App. Div. 2014) (holding a

defendant "must convince the court that a decision to reject the

plea bargain would have been rational under the circumstances"

(quoting Padilla v. Kentucky, 
559 U.S. 356, 372 (2010))).



                                 5                          A-2743-16T4
     We determine defendant's argument that the judge abused her

discretion by denying him an evidentiary hearing to be without

sufficient merit to warrant discussion here.   R. 2:11-3(e)(2).     A

defendant must establish a prima facie case in support of a PCR

application, R. 3:22-10(b); State v. Preciose, 
129 N.J. 451, 462

(1992), by demonstrating "the reasonable likelihood of succeeding"

under the Strickland test before an evidentiary hearing is ordered,

Preciose, 
129 N.J. at 463.     Defendant failed to do so and an

evidentiary hearing was not warranted.

     Affirmed.




                                6                           A-2743-16T4