Opinion
DOCKET NO. A-4717-14T2
01-05-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAL C. HVIDSTEN, a/k/a HAS HULDSTEN, a/k/a HAL HYLDSTEN, a/k/a BIG BOY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Susan Berkow, Special Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fisher and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-0596. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Susan Berkow, Special Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals a March 30, 2015 Law Division order denying his post-conviction relief (PCR) petition without an evidentiary hearing. Having considered the record and applicable law, we affirm.
On April 25, 2010, defendant pled guilty to third-degree possession with intent to distribute a controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7, pursuant to a negotiated plea agreement. The State agreed to recommend that defendant be sentenced to a five-year term of special probation in drug court with an alternative extended term custodial sentence of eight years with a forty-eight-month period of parole ineligibility, if defendant violated probation. During the plea colloquy, defendant acknowledged that based on his prior criminal record, he was otherwise eligible for a mandatory extended-term sentence of up to ten years with a five-year period of parole ineligibility if convicted of the school zone offense.
Defendant was subsequently sentenced to a five-year special probationary drug court sentence pursuant to N.J.S.A. 2C:35-14. The court imposed an alternative extended-term sentence of eight years with a forty-eight-month period of parole ineligibility.
The court also imposed mandatory fines and penalties, required that defendant forfeit forty-five dollars, and suspended defendant's driving privileges for six months.
On July 11, 2013, defendant pled guilty to a violation of his drug court probation. Consistent with the terms of defendant's plea agreement, the court imposed an extended-term custodial sentence of eight years with a forty-eight-month period of parole ineligibility.
Defendant appealed the court's sentence. The matter was heard on an excessive sentencing calendar and on February 11, 2014, we affirmed. State v. Hvidsten, No. A-6167-12 (App. Div. Feb. 11, 2014) (order affirming sentence). Defendant's petition for certification was denied. State v. Hvidsten, 218 N.J. 276 (2014).
In April 2014, defendant filed a pro se PCR petition. He was assigned counsel who filed a supplemental brief on defendant's behalf. In defendant's pro se brief, he argued:
POINT I
PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST. AMEND VI, XIV; N.J. CONST., (1947), Art. I, par. 10.); THEREFORE HE SHOULD BE GRANTED A RESENTENCING.
A. STANDARDS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
COUNSEL WAS INEFFECTIVE.
A. COUNSEL FAILED TO INFORM HIS CLIENT ABOUT THE MATERIAL CONSEQUENCES OF HIS GUILTY PLEA; THIS ACTION CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant's counsel made the following arguments:
POINT I
BECAUSE THE STATE FAILED TO MAKE A FORMAL APPLICATION FOR AN EXTENDED TERM AS REQUIRED BY N.J.S.A. 2C:43-6(f), DEFENDANT-PETITIONER WAS GIVEN AN ILLEGAL SENTENCE.
POINT II
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL THAT IS CONSTITUTIONALLY GUARANTEED BY U.S. CONST. AMENDS. VI, XIV AND N.J. CONST. ART. I, PAR. 10.
POINT III
PETITIONER HAS ESTABLISHED A PRIMA FACIE CASE THAT SUPPORTS THE ORDERING OF AN EVIDENTIARY HEARING.
POINT IV
PETITIONER IS NOT PROCEDURALLY BARRED FROM RAISING THE CLAIMS OF THIS BRIEF FOR POST-CONVICTION RELIEF.
POINT V
PETITIONER INCORPORATES BY REFERENCE ANY ARGUMENTS IN THE INITIAL VERIFIED PETITION AS WELL AS THOSE CONTAINED IN ANY PRO SE BRIEF.
The PCR court heard oral argument on defendant's PCR petition. In a written decision the court found defendant's sentence was not illegal and that defendant failed to demonstrate his plea and appellate counsel were ineffective. The court further found that even if defendant could establish his counsels' performances were deficient, he failed to demonstrate he suffered any prejudice. The court entered an order denying defendant's PCR petition without an evidentiary hearing. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE, INDEPENDENT OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE CODE OF CRIMINAL JUSTICE TO BE PROTECTED FROM AN ILLEGAL SENTENCE RESULTING FROM THE STATE'S FAILURE TO MAKE A FORMAL APPLICATION FOR AN EXTENDED TERM AS REQUIRED BY N.J.S.A. 2C:43-6[(f)] WAS VIOLATED.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO CHALLENGE THE EXTENDED TERM SENTENCE SATISFIED PRIMA FACIE CRITERIA FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421 (emphasis omitted). We apply that standard here.
Defendant first argues the PCR court erred by failing to find his sentence was illegal. Defendant contends the extended-term eight-year custodial sentence imposed by the court under N.J.S.A. 2C:43-6(f) is illegal because the State failed to make a formal application for the imposition of the sentence. Defendant claims the State's failure to file an application deprived him of his due process right to be protected from the imposition of an illegal sentence.
"[A]n illegal sentence is one that 'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)); see also R. 3:22-2(c) (providing that PCR relief may be granted based on "[i]mposition of [a] sentence in excess of or otherwise not in accordance with the sentence authorized by law"). Defendant does not claim his sentence exceeds the maximum penalty provided in the Code. His sentence was within the permissible sentencing range for a mandatory extended-term sentence under N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:43-7 because of his prior conviction for distribution or possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5.
Defendant claims his sentence was not imposed in accordance with law because of what he alleges was the State's failure to make an application for an extended-term sentence as required by N.J.S.A. 2C:43-6(f). "[A] sentence may not be in accordance with law because it fails to satisfy required presentencing conditions." Murray, supra, 162 N.J. at 247.
We are convinced defendant's argument lacks merit. Rule 3:21-4(e) provides that a motion for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6(f) shall be filed by the State within fourteen days of the entry of the defendant's guilty plea or return of the verdict. The Rule also provides:
Where the defendant is pleading guilty pursuant to a negotiated disposition, the prosecutor shall make the motion at or prior to the plea. If the negotiated disposition includes the recommendation of an extended term, the prosecutor's oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State's motion.
[R. 3:21-4(e).]
Here, the State provided defendant with a Brimage plea negotiation worksheet that included a plea offer pursuant to which the State agreed to recommend an extended-term sentence of eight years with a forty-eight-month period of parole ineligibility in exchange for defendant's plea of guilty to third-degree possession with intent to distribute a controlled dangerous substance within 1,000 feet of a school. Defendant subsequently accepted a modified plea offer pursuant to which the State recommended a five-year special probationary term in drug court and an alternative extended-term eight-year custodial sentence with a forty-eight-month period of parole ineligibility. The plea form defendant signed included the State's recommendation. Moreover, defendant was advised during his plea proceeding that although his conviction of a third-degree offense ordinarily carried a custodial sentence of up to five years, he would receive special drug court probation and an alternative custodial sentence of eight years with a forty-eight-month period of parole ineligibility.
State v. Brimage, 153 N.J. 1 (1998).
The State's communications during the plea process and proceeding, coupled with the information contained in defendant's plea agreement, constituted the State's application for an extended term. R. 3:21-4(e). We are satisfied the court's imposition of an extended-term sentence was in accordance with law because the State made an application for an extended-term sentence as required under N.J.S.A. 2C:43-6(f). Defendant's sentence, therefore, was not illegal.
Because the State filed the requisite application for an extended term, we do not decide if a failure to file an application under N.J.S.A. 2C:43-6(f) would render the imposition of an extended-term sentence illegal or excessive. See, e.g., Acevedo, supra, 205 N.J. at 45-47 (distinguishing between illegal and excessive sentences).
The State was not required to file a new application for an extended-term sentence under N.J.S.A. 2C:43-6(f) following defendant's plea to the violation of his special drug court probation. The custodial sentence of eight years with a forty-eight-month period of parole ineligibility was properly included as an alternative sentence to his special drug court probation. State v. Bishop, 429 N.J. Super. 533, 551-52 (App. Div. 2013), aff'd, 223 N.J. 290 (2015). Following defendant's plea to the violation of the special drug court probation, "[t]he court had the authority to impose any lawful sentence not to exceed that recommended as an alternative in the plea agreement." Id. at 551; N.J.S.A. 2C:35-14(f)(4).
On defendant's direct appeal of his sentence, we rejected his argument that the sentence was excessive. --------
Defendant also contends his trial and appellate counsel were ineffective. The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part standard, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland standard, a petitioner must show counsel's performance was deficient by demonstrating counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Ibid. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant's claim that his plea and appellate counsel were ineffective is based solely on the erroneous assumption his sentence was illegal because of the alleged failure of the State to file an application for an extended term under N.J.S.A. 2C:43-6(f). As noted, defendant's sentence was imposed in accordance with N.J.S.A. 2C:43-6(f) and Rule 3:21-4(e), and was not illegal. There was no basis in law for either his plea or appellate counsel to challenge the court's imposition of an extended-term sentence based on the State's purported failure to file the application required under N.J.S.A. 2C:43-6(f). As a result, defendant did not satisfy either prong of the Strickland standard. See State v. O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion . . . ."); State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").
We also reject defendant's claim that the court should have conducted an evidentiary hearing. A hearing is required when a defendant presents a prima facie case for PCR under the Strickland standard, the existing record is inadequate to resolve defendant's claim, and the court determines an evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702. Here, the existing record provided an adequate basis for the court's finding that defendant did not establish a prima facie case of ineffective assistance of counsel and therefore an evidentiary hearing was not required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION