STATE OF NEW JERSEY v. MICHAEL A. JONES

NOT FOR PUBLICATION WITHOUT THE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-5208-17T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

MICHAEL A. JONES, a/k/a
CARL A. JONES,

     Defendant-Appellant.
_____________________________

                   Submitted October 10, 2019 – Decided October 31, 2019

                   Before Judges Koblitz and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment Nos. 10-04-
                   260 and 10-10-0567, and Accusation Nos. 10-07-0377
                   and 10-07-0378.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew Robert 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 Michael A. Jones appeals from a February 28, 2017 order

denying his motion for post-conviction relief (PCR) after an evidentiary hearing.

We affirm substantially for the reasons expressed in Judge Robert G. Malestein's

comprehensive written opinion issued with the order.

      Defendant entered a guilty plea to portions of one indictment and two

accusations charging theft and forgery crimes in July 2010. He was sentenced

to five years in prison in August 2010. He was indicted on other charges

including felony murder,  N.J.S.A. 2C:11-3(a)(3) and first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1)-(2) on October 10, 2010.           In 2013

defendant pled guilty and was sentenced to thirty years in prison, subject to

eighty-five percent parole ineligibility of the No Early Release Act,  N.J.S.A.

2C:43-7.2, for aggravated manslaughter and other charges.        Defendant was

awarded 150 days jail time and 1078 days gap-time credit. Gap-time credit

reduced the maximum time he would spend in prison, but did not impact his

parole eligibility. See State v. Rippy,  431 N.J. Super. 338, 347-48 (App. Div.

2013). He argued his gap-time credit should be awarded as jail time on appeal.

His sentence was affirmed on appeal by order and his petition for certification

was denied. State v. Jones,  220 N.J. 40 (2014).


                                                                        A-5208-17T4
                                       2
      Defendant argued in his PCR petition that his counsel had been ineffective

in failing to inform him how pleading guilty prior to resolving the criminal

homicide matter would affect his jail time credits.       Trial defense counsel

testified at the PCR hearing that the State was unwilling to negotiate a plea

involving the homicide charges in 2010 and defendant wanted to plead guilty

quickly so that he would be sentenced and could leave the jail for a better living

situation in state prison. The PCR court found defendant's testimony incredible,

while finding defense counsel truthful and her testimony well-supported by the

record.

       Defendant raises the following issues on appeal:

            POINT I:     BECAUSE PLEA COUNSEL
            AFFIRMATIVELY MISLED DEFENDANT AS TO
            PENAL CONSEQUENCES OF ENTERING A
            GUILTY PLEA, THE PLEA WAS NOT MADE
            KNOWINGLY AND INTELLIGENTLY.

      We defer to the credibility assessments of the PCR court when it bases its

factual findings on live testimony "that [is] supported by sufficient credible

evidence in the record." State v. Pierre,  223 N.J. 560, 576 (2015) (quoting State

v. Nash,  212 N.J. 518, 540 (2013)).

      In his twenty-two page written opinion, Judge Malestein reviewed the

factual background, the law regarding PCR and ineffective assistance of


                                                                         A-5208-17T4
                                        3
counsel, and the reasons he determined a testimonial hearing was necessary to

resolve the factual conflict between defendant and his plea counsel, who had

submitted an affidavit.

      Having heard testimony from defendant and defendant's lawyer who

represented him for the first guilty plea, Judge Malestein explained why he

found counsel more credible than defendant. Counsel related that she had

explained to defendant that he would not receive jail credit on the more serious

charges if he resolved the lesser ones and began serving a prison sentence.

Defendant nevertheless chose to proceed with the first guilty plea.

      The judge found defendant admitted he had met with counsel "dozens" of

times and that he had a considerable criminal history. Defendant had served at

least eleven state prison sentences. Thus, the judge found it incredible that

defendant was not aware of the ramifications of jail credit versus gap-time

credit.

      We affirm substantially for the reasons expressed in Judge Malestein's

thorough opinion.

      Affirmed.




                                                                        A-5208-17T4
                                       4