STATE OF NEW JERSEY v. STEVEN PARKEY

NOT FOR PUBLICATION WITHOUT THE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-0752-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEVEN PARKEY,

     Defendant-Appellant.
_________________________

                    Submitted December 9, 2019 – Decided April 14, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 11-03-
                    0354.

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

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (Joie D. Piderit,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        In an earlier unpublished opinion, we vacated the denial of defendant

Steven Parkey's petition for post-conviction relief (PCR) and remanded the

matter for further consideration by the PCR court. See State v. Parkey, A-0332-

16 (App. Div. Apr. 10, 2018) (slip op. at 2). Defendant now appeals from the

PCR court's June 26, 2018 order denying his petition for relief again. The PCR

court rejected defendant's contentions for the reasons stated in the court 's

twenty-seven-page written decision. On appeal he contends that the PCR court

erred by not granting him an evidentiary hearing to address his claim of

ineffective assistance of counsel (IAC) relating to his trial counsel's "failure to

argue the relevant applicable law at the Sands[1] hearing" conducted during his

trial. In addition, defendant contends that the PCR "court erred in not allowing

[him] to withdraw his guilty plea." We reject his contentions and affirm,

substantially for the reasons expressed by the PCR court in its comprehensive

written decision.

        In our earlier opinion, we set forth the various charges to which plaintiff

"pled guilty during his trial while the jury was deliberating." Parkey, slip op at

2. We also explained that the court "imposed a sentence of twenty-five years . . .

with [a] twelve and one-half year[ period] of parole ineligibility, [both] in


1
    State v. Sands,  76 N.J. 127 (1978).
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accordance with defendant's plea agreement." Ibid. As we also noted, on direct

appeal, defendant only argued that his sentence was excessive, and we affirmed

but remanded for issues relating to the imposition of certain financial penalties.

Id. at 3. We then described defendant's contentions on PCR about trial counsel's

"errors concerning [the] Sands hearing [that] led [him] to take a plea he

otherwise would not have taken," and his argument on PCR that trial counsel

failed to make various arguments during sentencing.         Ibid. (first and third

alteration in original).   We also noted defendant's claims of IAC against

appellate counsel. Ibid.

        The focus of defendant's PCR contentions were rulings made at trial after

a Sands hearing about the admission of defendant's prior convictions. As we

noted in our earlier decision, although the court originally ruled that it would

allow the admission of only one prior conviction, the next day at trial the court

allowed the admission of all the prior convictions. 2 Id. at 2-3. Thereafter, when

considering defendant's PCR petition, the PCR court only addressed the initial

decision to allow the one conviction, evidently because the PCR court was not

provided with a transcript of the proceedings from the day the second ruling was

made. Id. at 4-5 n.2. For that reason, we remanded the matter directing the PCR


2
    The trial judge was the same judge who considered the PCR petition. Id. at 4.
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court to reconsider defendant's "petition anew to allow [the PCR court] to

evaluate his entitlement to relief in the context of the [trial court's] actual Sands

decision and the events that occurred at trial." Id. at 6.

      Defendant's claim of IAC was based upon trial counsel's reliance on

N.J.R.E. 609 and the Court's opinion in State v. Harris,  209 N.J. 431, 441 (2012).

As defendant explained, his trial counsel relied on these legal authorities that

were implemented or decided years after the date of the offense defendant

committed. Moreover, defendant asserted that trial counsel did not direct the

trial court to "relevant case law developed after the instant offense that would

have been helpful to defendant's position."

      In support of that claim, defendant cited to State v. Murphy,  412 N.J.

Super. 553, 565 (App. Div. 2010) and State v. Leonard,  410 N.J. Super. 182,

186-89 (App. Div. 2009). Defendant asserted that trial counsel did not even

argue that the "probative value of defendant's previous convictions was

substantially outweighed by the risk that its admission would create [a]

substantial danger of undue prejudice." He also took issue with trial counsel's

failure to direct the trial court to consider Federal Rule of Evidence 609 as a

basis to "preclude[] the use of all defendant's prior convictions" because they

were too remote.


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      Defendant stated that he was prejudiced by trial counsel's deficiencies.

According to defendant, the admission of the prior convictions prevented him

from testifying a trial and explaining to the jury that he was not the individual

who "presumably murdered the victim" as he was not present at the location of

the incident at the time of the victim's death, rather the victim's ex-boyfriend

was there at the time.

      Defendant also argued that because of trial counsel's error he was forced

to plead guilty, which he would otherwise not have done. Applying the factors

under State v. Slater,  198 N.J. 145, 157-58 (2009), defendant claimed that he

established his right to withdraw his plea for that reason.          According to

defendant, his testimony at trial would have established "a colorable claim of . . .

innocence" and a "plausible showing of a valid defense against the charges."

Defendant also asserted that although the offense was committed in 1990, and

his convictions were based upon his guilty plea, the trial took place in 2014 and

therefore the State would not be exposed to any real prejudice if a new trial was

granted.

      As noted, after reconsidering defendant's petition on remand, the PCR

court again entered an order denying defendant relief.              In the court's

accompanying statement of reasons, it initially reviewed the "procedural


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posture" of the case and explained that at trial "[t]he [c]ourt ruled that

[defendant's] conviction from 2005 was admissible but that four earlier

convictions were too remote and thus, inadmissible." However, after the State

asked the court to reconsider its decision on the next day of trial, the court

allowed defendant's additional convictions to be admitted once they were

sanitized. As the court explained, it relied upon "defendant's extensive criminal

history[, which] supported a finding that there were no significant breaks in

arrests over the years to allow the conclusion that there was a natural break and

a period of law abiding behavior."

      The PCR court then set forth the facts surrounding defendant's conviction

and turned to the parties' arguments on remand. The court described defendant's

argument as: "[H]is trial counsel was ineffective in that he failed to properly

argue the Sands motion[,] . . . failed to move for leave to file an[] emergent

appeal . . . [, and] also argued that cumulative error[s] resulted in . . .

[defendant] being denied his right to a fair trial."

      The court then conducted an extensive discussion of the law governing

consideration of a PCR petition under the two-prong test stated in Strickland v.

Washington,  466 U.S. 668, 687 (1984), as adopted by the New Jersey Supreme

Court in State v. Fritz,  105 N.J. 42, 58 (1987). The judge noted that where, as


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here, a defendant pled guilty, the two-prong test was modified by the Court in

State v. DiFrisco,  137 N.J. 434, 457 (1994) to require that a defendant establish

that: "(i) counsel's assistance was not 'within the range of competence demanded

of attorneys in criminal cases,' 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.'" (Alteration in original) (citations omitted).

      The PCR court went on to consider each of defendant's contentions anew.

Addressing defendant's contention about trial counsel's assistance in pursuing

the exclusion of his prior convictions, the court concluded that defendant "failed

to show that his trial counsel's performance was deficient."            As the court

described, it analyzed the law in effect at the time the crime was committed and

determined that the end result would have been the same had the court also relied

on N.J.R.E. 609. The court explained that under Sands, it was defendant's

burden to establish that the exclusion of his prior convictions would have been

justified. Quoting State v. Paige,  256 N.J. Super. 362, 373 (App. Div. 1992),

the PCR court stated that "[t]he key to exclusion is remoteness," but "[w]hen a

defendant has an extensive prior criminal record, indicating that he has contempt

for the bounds of behavior placed on all citizens, his burden should be a heavy

one in attempting to exclude all such evidence."


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      The PCR court stated that at trial, the court found that all of defendant's

prior convictions were admissible "for impeachment purposes since there was

no significant break in arrests [or] a period of law abiding behavior." The court

concluded that under whichever law was argued by trial counsel, whether it was

"the Federal Rules of Evidence" or "the law in effect at the time the crimes were

committed, [defendant] ha[d] not established that trial counsel's performance

was deficient in this regard." Moreover, under Strickland's second prong, the

PCR court concluded, as it did in its earlier decision on PCR, defendant "failed

to establish that but for trial counsel's failure to object to the use of N.J.R.E. 609

and the timing of the Sands hearing, he would not have pled guilty." The PCR

court relied primarily upon defendants "very favorable plea agreement."

      Turning to defendant's contention about his right to withdraw his guilty

plea, the PCR court reviewed the applicable law under Slater and Rule 3:21-1.

Quoting State v. Howard,  110 N.J. 113, 123 (1988), the court stated that

"withdrawal of a plea is more rigid following the sentencing of a defendant,

considering the 'strong interest of the State in the finality of a guilty plea.'" The

court then identified the four Slater factors and applied them to defendant's

claims and found defendant failed to meet his burden as to each factor. This

appeal followed.


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            POINT I

            THE PCR COURT ERRED IN NOT GRANTING
            DEFENDANT AN EVIDENTIARY HEARING
            WHERE DEFENDANT RECEIVED INEFFECTIVE
            ASSISTANCE OF COUNSEL BY COUNSEL'S
            FAILURE   TO  ARGUE     THE  RELEVANT
            APPLICABLE LAW AT THE SANDS HEARING.

            POINT II

            THE COURT ERRED IN NOT ALLOWING
            DEFENDANT TO WITHDRAW HIS GUILTY PLEA.

      We review de novo a decision to deny a petition for PCR where the PCR

court did not conduct an evidentiary hearing. State v. Harris,  181 N.J. 391, 419

(2004). Under those circumstances, "it is within our authority 'to conduct a de

novo review of both the factual findings and legal conclusions of the PCR

court.'" State v. Reevey,  417 N.J. Super. 134, 147 (App. Div. 2010) (quoting

Harris,  181 N.J. at 421).

      We review a court's decision on motions to withdraw a guilty plea for "an

abuse of discretion." State v. O'Donnell,  435 N.J. Super 351, 372 (App. Div.

2014). The "denial of defendant's request to withdraw his guilty plea will be

reversed on appeal only if . . . the lower court's decision [was] clearly

erroneous." State v. Lipa,  219 N.J. 323, 332 (App. Div. 2014) (quoting State v.

Simon,  161 N.J. 416, 444 (1999)). "A denial of a motion to vacate a plea is


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'clearly erroneous' if the evidence presented on the motion, considered in light

of the controlling legal standards, warrant a grant of that relief." O'Donnell,  435 N.J. Super at 372 (quoting State v. Mustaro,  411 N.J. Super. 91, 99 (App. Div.

2009)).

      Applying these standards, we agree that the PCR court correctly denied

defendant's petition for PCR and his application to withdraw his guilty plea,

substantially for the reasons expressed by the PCR court in its thoughtful and

thorough written decision. We find no merit to any of defendant's contentions

to the contrary and conclude, as did the PCR court, that defendant failed to

establish a prima facie claim of IAC within the Strickland test and failed to meet

his burden under Slater. Accordingly, the PCR court correctly concluded that

an evidentiary hearing was not warranted. See State v. Preciose,  129 N.J. 451,

462-63 (1992).

      Affirmed.




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