STATE OF NEW JERSEY v. NAKENDRIC LEWIS

NOT FOR PUBLICATION WITHOUT THE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-0793-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NAKENDRIC LEWIS,

     Defendant-Appellant.
_______________________

                   Submitted February 22, 2021 – Decided March 16, 2021

                   Before Judges Sabatino and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 12-02-0157.

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

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Alanna M. Jereb, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      In 2014 defendant Nakendric Lewis pled guilty, among other things, to

aggravated manslaughter of two victims and aggravated assault of a third victim.

Consistent with his plea agreement with the State, he was sentenced to

concurrent prison terms of twenty-eight years, subject to an eighty-five-percent

parole ineligibility period under the No Early Release Act,  N.J.S.A. 2C:43-7.2.

He was also ordered to pay restitution for the homicide victims' funeral

expenses.

      After unsuccessfully appealing his sentence and restitution obligation,

defendant filed a petition for postconviction relief ("PCR"). His petition alleged

his former counsel was ineffective in various respects, and that he had been

allegedly coerced to accept the State's plea offer. Upon considering defendant's

contentions, the trial court rejected his PCR application and found an evidentiary

hearing unnecessary.

      Defendant now appeals, presenting the following arguments in his brief:

            POINT I

            DEFENDANT'S PCR WAS NOT BARRED BY R.
            3:23-5.

            POINT II

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION     RELIEF     WITHOUT

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            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT HE
            FAILED TO RECEIVE ADEQUATE LEGAL
            REPRESENTATION FROM HIS ATTORNEY.

      Having fully considered these points, we affirm the denial of the PCR

petition, essentially for the substantive reasons stated by Judge Ronald B.

Sokalski, in his August 28, 2019 oral opinion.

      The record shows defendant was charged with two counts of murder, by

fatally shooting Asan Jones on June 28, 2011, and then fatally shooting Darren

Mason less than a month later on July 20, 2011. Defendant also shot and

wounded another victim, Linda Robinson, in the leg on July 10, 2011, but she

survived that aggravated assault.

      At the time of these violent offenses, defendant was age sixteen. He was

waived to the Criminal Part to be adjudicated as an adult. His defense counsel

then negotiated a favorable plea agreement with the State, in which he avoided

the imposition of any consecutive prison terms.

      At sentencing in July 2014, Judge Donna Gallucio noted defendant's

lengthy juvenile record of previous offenses, and found aggravating factors

three, six, and nine applied under  N.J.S.A. 2C:44-1(a). The sentencing judge

found one mitigating factor, six (restitution),  N.J.S.A. 2C:44-1(b)(6), which she

determined was substantially outweighed by the aggravating factors. The

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restitution imposed was in the sum of $9500, corresponding to the funeral costs

of the two deceased victims.

      Defendant appealed his sentence as excessive. That appeal was heard on

the Sentencing Oral Argument ("SOA") calendar by a panel of this court on May

4, 2015. Defendant's appellate counsel argued the sentence failed to take

sufficiently into account his youth, and further argued there should have been

an ability-to-pay hearing on the restitution amount. See State v. Lewis, No. A-

1972-14 (App. Div. May 4, 2015). We rejected those arguments and issued an

order affirming the terms of the sentence in all respects.

      In his ensuing PCR petition defendant argued: (1) his plea counsel was

ineffective in failing to argue at sentencing the so-called constitutional "youth

factors" applicable to juvenile offenders under Miller v. Alabama,  567 U.S. 460

(2012); (2) plea counsel should have requested a restitution hearing; (3)

defendant was allegedly coerced into accepting the State's plea offer; and (4) the

PCR judge should have held an evidentiary hearing.

      As Judge Sokalski rightly found, none of these arguments have merit. We

briefly address them here.

      First, the United States Supreme Court's holding in Miller, which was

amplified by our own State Supreme Court in State v. Zuber,  227 N.J. 422


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(2017), does not apply here because defendant was not sentenced to a prison

term that is the functional equivalent of a life sentence. As the PCR judge noted,

defendant will become eligible for parole consideration as early as the age of

forty-one. Our case law has consistently held prison terms with longer parole

ineligibility periods fall outside of Miller's ambit. See, e.g., State v. Tormasi,

___ N.J. Super. __, __ (App. Div. 2021) (finding the Miller factors inapplicable

to a sentence with a thirty-year parole bar imposed on a sixteen-year old

murderer); State v. Bass,  457 N.J. Super. 1, 13-14 (App. Div. 2018) (holding an

aggregate term of life imprisonment with a thirty-five-year parole bar was not

the functional equivalent of a life sentence).

      Moreover, even if the sentence duration here qualified to implicate the

"youth factors," defense counsel stressed defendant's young age at sentencing

and advocated for a shorter prison term than was called for under the plea

agreement. Although counsel did not cite the Miller opinion specifically, we

agree with the PCR judge that doing so would not have appreciably impacted

the sentencing analysis.

      Defendant fired a gun multiple times at these three victims on three

separate dates, killing two of them and wounding the third. Given the grim facts

and his poor juvenile record, he was fortunate to avoid, through the negotiating


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efforts of his counsel, even lengthier consecutive sentences for murder and

aggravated assault.

      Second, the restitution award was already upheld by this court on direct

appeal in the SOA process. We discern no necessity to remand the case at this

time for an ability-to-pay hearing. The sums are not exorbitant and correspond

to funeral expenses that defendant caused to be incurred by his own homicidal

acts. Even recognizing that defendant earns little money in prison, he still could

have the capability to pay installments to the victims' families when he

eventually finishes his term.

      Third, defendant's claim of undue pressure to accept the plea terms is

belied by the April 4, 2014 plea transcript, in which he acknowledged under oath

that he was pleading guilty voluntarily and had not been forced into his decision.

      Lastly, because defendant has not presented a prima facie case of

ineffective assistance of counsel under the standards of Strickland v.

Washington,  466 U.S. 668 (1984), there was no need for the trial court to

conduct an evidentiary hearing. State v. Preciose,  129 N.J. 451, 462-63 (1992).

      Affirmed.




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