STATE OF NEW JERSEY v. MICHAEL R. SUTTON

NOT FOR PUBLICATION WITHOUT THE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-4819-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MICHAEL R. SUTTON,

     Defendant-Appellant.
________________________________

              Submitted April 11, 2018 – Decided April 30, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Indictment Nos.
              15-04-0326 and 15-06-0503.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Karen A. Lodeserto, Designated
              Counsel, on the brief).

              Robert W. Johnson, Acting Cape May County
              Prosecutor, attorney for respondent (Gretchen
              A. Pickering, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant Michael R. Sutton appeals from a denial of his

petition for post-conviction relief (PCR) without an evidentiary

hearing.    We affirm.

     Defendant    pled   guilty   to       third-degree   possession      of    a

controlled dangerous substance (CDS), 
N.J.S.A. 2C:35-10a(1); and

third-degree possession with the intent to distribute a CDS,


N.J.S.A. 2C:35-5a(1) and 
N.J.S.A. 2C:35-5b(3).               Due to his two

prior second-degree distribution of CDS charges, 
N.J.S.A. 2C:35-

14a(6),    defendant   was   subject   to    a   mandatory   extended     term,


N.J.S.A. 2C:43-6(f).     Defendant was sentenced to an aggregate term

of seven years in state prison with three-and-one-half years of

parole ineligibility.

     Defendant filed a petition for PCR arguing that, given his

history of substance abuse, his plea counsel was ineffective for

failing to advise him about Drug Court.             Defendant contends had

his plea counsel advised him about Drug Court, he would not have

pled guilty, and he would have applied to Drug Court.           Defendant's

PCR counsel argued defendant met the Drug Court criteria and

defendant's plea counsel was ineffective in failing to apply to

Drug Court on defendant's behalf.

     The PCR judge requested a proffer from the State regarding

the practice in Cape May County regarding defendants who are

statutorily ineligible for Drug Court.            The Drug Court Assistant

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Prosecutor for Cape May County from 2014-16, Ed Shim, testified

how criminal defendants, statutorily ineligible for Drug Court due

to their criminal histories, are handled.       Shim testified:

               There are a number of ways that they are
          handled.   If they voluntarily fill out an
          application, then it would be screened. They
          would look at the criminal history, and if
          there were two prior second-degrees or one
          second-degree and a nonpossessory third-
          degree    prior    conviction,    they    are
          categorically ineligible, and they [would] be
          rejected.

                . . . .

               It could also be discovered [through] a
          defense counsel looking at their criminal
          history, talking to us informally, then being
          advised, your guy is ineligible. . . . At the
          end of the day, if you have two second-degrees
          or one second-degree and a third-degree, it
          will be found and you will be ineligible
          regardless of how that application [gets]
          before the [D]rug [C]ourt team.

When   asked   who   made   the   eligibility   determinations,       Shim

testified:

          [T]he agent of the AOC, a probation officer
          who is part of the [D]rug [C]ourt team, makes
          that rejection and that information is then
          disseminated to everybody on the [D]rug
          [C]ourt team.    So it is somebody making a
          decision who is an agent of the court. That
          [] is who is making the decision.

               All I could do is point that out to them.
          The way the system works right now, I don't
          have any control over [D]rug [C]ourt. I just
          point out, there is the disqualifier and if


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           they wouldn't honor that, I would have to
           appeal that decision and I certainly would.

     The judge then asked, "If they said, well, that's too bad,

we're letting him through with two second-degrees?"             Shim replied,

"Yes, I would absolutely appeal that because it would be incumbent

upon me to do so."

     The   PCR    judge   denied     defendant's     petition   holding      that

defendant did not establish by a preponderance of the evidence

that plea counsel was ineffective in failing to apply to Drug

Court on his behalf. The PCR judge found defendant was statutorily

excluded under 
N.J.S.A. 2C:35-14a(6), as he had two prior second-

degree convictions.       The PCR judge noted it would have been futile

"to submit a Drug Court application that was subject to statutory

rejection because of the criminal history of the defendant."                 This

appeal followed.

     Defendant raises the following point on appeal:

           POINT I

           DEFENDANT IS ENTITLED TO AN EVIDENTIARY
           HEARING BECAUSE PLEA COUNSEL FAILED TO HAVE
           HIM APPLY TO THE DRUG COURT PROGRAM.

     "Post-conviction       relief    is    New   Jersey's   analogue   to   the

federal writ of habeas corpus."            State v. Preciose, 
129 N.J. 451,

459 (1992).      A criminal defendant is entitled to post-conviction

relief if there was a "[s]ubstantial denial in the conviction


                                       4                                A-4819-16T1
proceedings of defendant's rights under the Constitution of the

United States or the Constitution or laws of the State of New

Jersey[.]"   R. 3:22-2(a).   "A petitioner must establish the right

to such relief by a preponderance of the credible evidence."

Preciose, 
129 N.J. at 459 (citations omitted).          "To sustain that

burden, specific facts" that "provide the court with an adequate

basis on which to rest its decision" must be articulated.              State

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

     Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review.          See R. 3:22-4(a)(2).

In determining whether a defendant is entitled to relief on the

basis of ineffective assistance of counsel, New Jersey courts

apply the two-prong test articulated by the United States Supreme

Court in Strickland v. Washington, 
466 U.S. 668, 687 (1984), and

United States v. Cronic, 
466 U.S. 648, 658-60 (1984), which we

adopted in State v. Fritz, 
105 N.J. 42, 49-50 (1987).             Preciose,


129 N.J. at 463.    Under Strickland, a defendant must show: (1)

"counsel's   performance   was   deficient;"   and    (2)   "a   reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different."             Strickland,


466 U.S. at 687, 694.

     Considering the record, we find defendant's argument lacks

sufficient merit to warrant an extended discussion here.             See R.

                                   5                                 A-4819-16T1
2:ll-3(e)(2).       For Drug Court admission, offenders subject to a

mandatory prison term pursuant to 
N.J.S.A. 2C:35-7 must satisfy

all 
N.J.S.A. 2C:35-14(a) requirements.           See 
N.J.S.A. 2C:35-14(a).

State v. Meyers, 
192 N.J. 421, 431-32 (2007).             The trial court

correctly found defendant could not satisfy the requirements of


N.J.S.A. 2C:35-14a(6), as defendant had two prior second-degree

distribution of CDS charges.        As such, defendant's argument that

plea counsel's failure to advise him about Drug Court or have him

apply   to   Drug    Court   on   his   behalf   constitutes   ineffective

assistance of counsel is wholly without merit.

    Affirmed.




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