Opinion
DOCKET NO. A-1868-11T1
05-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON HEARNS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-09-1858.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
This matter returns to us following our sua sponte remand of the dismissal of defendant Jason Hearns's petition for post-conviction relief (PCR) without due consideration or an adequate statement of reasons. Although we need not repeat the lengthy procedural history of this case, some background is in order.
We set out the procedural history of this matter in our May 21, 2013 remand order. As the bulk of it is not relevant to the issues before us, we do not include it here.
Defendant was indicted on charges of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1)-(2), unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, after shooting a sixteen-year-old unarmed youth in the head following an argument. Eyewitnesses identified defendant, then eighteen years old, as the shooter, and he admitted killing the victim.
Defendant pled guilty in 2001 to aggravated manslaughter, N.J.S.A. 2C:11-4a, and the State dismissed the remaining charges. He was sentenced in accordance with the plea agreement to a thirty-year term of imprisonment, eighty-five percent of which would have to be served before he was eligible for parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At the time of the plea, neither counsel nor the court mentioned the statutorily mandated five-year term of parole supervision; it was not noted in the plea forms nor included in the judgment of conviction. The supervised parole term was not actually imposed until defendant's resentencing in 2004 following our remand for resentencing. Defendant continued to challenge his sentence, not exhausting his direct appeals until 2010.
Three months later, defendant filed his first PCR petition alleging ineffective assistance in his counsel's failure to advise him of the parole supervision term, the denial of which prompted our sua sponte remand. Specifically, we remanded for consideration of whether the delay between September 3, 2004, the date defendant first became aware of his parole supervision term, and May 28, 2010, the date he filed his PCR petition, is excusable; and whether defendant has demonstrated a reasonable probability that if his factual assertions were true, enforcement of the time bar would result in a fundamental injustice. See R. 3:22-12(a)(1).
A different judge conducted the hearing on remand. After defendant declined the judge's offer to present testimony, the judge heard argument on the issues we raised as well as on the merits of the petition. The judge found that defendant had failed to set forth a valid claim of excusable neglect. Despite defendant having been advised of the imposition of the parole supervision term at his resentencing in 2004, and again at his second resentencing in 2006, defendant failed to file a PCR petition until May 2010. Instead, throughout that period, defendant assiduously pursued direct appeal of his sentence, never raising any issue regarding the validity of his plea. Concluding from those facts that defendant "was not interested in trying to vacate his guilty plea until after it became apparent that he was not going to get [relief] from his sentence," the judge rejected the claim as untimely.
Proceeding to consider the claim on the merits, the judge found that defendant could not establish that his counsel's performance had been deficient under then prevailing professional norms under the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The judge noted that it was not until two years after defendant's plea that we held in State v. Freudenberger, 358 N.J. Super. 162, 170 (App. Div. 2003) that a NERA term of parole supervision is a direct penal consequence of a guilty plea of which a defendant must be informed. See also State v. Johnson, 182 N.J. 232, 244 (2005) (holding that a defendant must demonstrate how the omission of information about NERA materially affected his decision to plead guilty in order to withdraw his plea). Because counsel's performance is evaluated with reference to the law as it existed at the time of the representation, State v. Goodwin, 173 N.J. 583, 597-98 (2002), the judge concluded that trial counsel cannot be deemed deficient for failing to advise defendant of the parole supervision term at the time of his plea.
Freudenberger also clarified that although NERA supervision terms are not self-executing, they are deemed to have been imposed because they are statutorily required. Freudenberger, supra, 358 N.J. Super. at 167.
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Notwithstanding that defendant could not demonstrate his counsel's performance had been deficient, the judge proceeded to consider whether counsel's failure to advise defendant about the parole supervision term could have reasonably affected his decision to plead guilty. Other than the bald assertion in the PCR petition, which defendant declined to amplify or explain when the judge offered to hear his testimony, the judge found nothing to suggest that had defendant been advised of the mandatory period of parole supervision, he would not have entered his guilty plea. Accordingly, the judge found defendant's assertion "lacks substance, support and credulity within the context of this entire record."
Defendant raises the following issues for our consideration on appeal:
POINT ONE:We reject these arguments and affirm the denial of defendant's petition.
[DEFENDANT] IS ENTITLED TO RELIEF OR AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL FOR FAILING TO INFORM HIM ABOUT THE PAROLE CONSEQUENCES OF HIS PLEA.
POINT TWO:
THE PCR COURT ERRONEOUSLY RULED THAT [DEFENDANT'S] PETITION WAS TIME BARRED BECAUSE HE FAILED TO DEMONSTRATE EXCUSABLE NEGLECT.
We agree with the Law Division judge that defendant's claim is time-barred. Under Rule 3:22-12(a)(1), a first petition for PCR must be filed no more than five years after entry of the judgment of conviction "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Defendant meets neither of those requirements.
The only reason defendant offers for his failure to file a PCR petition within five years of first learning of the parole supervision term in 2004 is that he was pursuing the appeal of his sentence. Only exceptional circumstances, however, permit relief from the five-year bar, State v. Afanador, 151 N.J. 41, 52 (1997), and the period is neither stayed nor tolled by pursuit of a direct appeal. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996).
Although not essential because defendant cannot show excusable neglect, he is wrong that the judge did not consider whether enforcement of the time bar would work a fundamental injustice. The judge considered whether there was any evidence in the record to suggest that defendant's choice to plead guilty was influenced by his counsel's failure to explain the mandatory parole supervision term. He found, instead, that defendant had received a very favorable plea deal and that there was no proof that "having to serve 5 years of parole after serving 25 1/2 years in prison would have been 'a deal breaker.'"
As we stated on defendant's direct appeal, the sentencing judge "recognized the difficulty of imposing a negotiated plea bargain where the proofs may warrant a conviction for a greater charged offense and the negotiated disposition takes that fact into consideration." State v. Hearns (IV), No. A-0515-07 (App. Div. Jan. 8, 2009) (slip op. at 7-8), certif. denied, 201 N.J. 274 (2010). We considered defendant's "colorable argument that he has been sentenced to the maximum sentence for aggravated manslaughter because he was treated as if convicted of murder." Id. at 8. We concluded, however, that "by entering the negotiated plea, defendant acknowledged . . . the totality of circumstances warranted a maximum thirty-year sentence with a NERA component for aggravated manslaughter, and he avoided a potential sentence of up to life imprisonment with a mandatory thirty years of parole ineligibility if convicted of murder." Id. at 8; see N.J.S.A. 2C:11-3b.
These facts are critical, not only to a determination of fundamental injustice under Rule 3:22-12(a)(1), but also to the materiality of the omission to defendant's plea under Johnson, supra, 182 N.J. at 244. This is not a case, as in Johnson, in which the record "fairly broadcast[s] the materiality of the omitted information and its importance in relation to defendant's decision to plead." Id. at 242. To the contrary, here one is confronted with only deafening silence. There is not an iota of evidence in this record, other than defendant's bald assertion, that the NERA parole supervision had any effect on his decision to accept the State's offer to plead to aggravated manslaughter in exchange for a thirty-year NERA term. The record reflects a favorable plea in a strong case likely warranting conviction on the greater charged offense. Defendant has certainly not shown that but for counsel's failure to advise him of the parole supervision, he "would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).
Finally, we reject defendant's claim that the case should be remanded for an evidentiary hearing. We note that defendant declined the judge's offer to allow him to present testimony on the remand. As defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION