Opinion
DOCKET NO. A-2514-14T3
07-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AL-TARIQ LAMPLEY, a/k/a ALTARIQ LAMPLEY, a/k/a AL-TARIQ THOMPSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Emily A. Kline, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Camila Garces, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Suter. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-04-1139. Joseph E. Krakora, Public Defender, attorney for appellant (Emily A. Kline, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Camila Garces, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Al-Tariq Lampley appeals from a December 17, 2014 order denying his petition for post-conviction relief (PCR). We affirm.
I.
In November 1999, defendant and another individual approached a man and his son at the Newark International Airport and, at knifepoint, robbed them. The victims also were driven to two different banks to withdraw money. A few days later and again at knifepoint, defendant took a woman's vehicle at the airport, but was spotted by an officer, who then gave chase. After causing an accident with the victim's vehicle, defendant was apprehended, broke free of the police and took possession of an officer's service revolver and vehicle, but was apprehended again and finally arrested.
Two separate indictments were returned against defendant in April 2000. For the first incident, defendant was charged with: first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; third-degree terroristic threats, N.J.S.A. 2C:12-3; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). For the second incident, defendant was charged with: two counts of first-degree carjacking, N.J.S.A. 2C:15-2; second-degree eluding the police, N.J.S.A. 2C:29-2(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree resisting arrest, N.J.S.A. 2C:29-2; and second-degree disarming a police officer, N.J.S.A. 2C:12-11.
On January 29, 2001, defendant pled guilty to all counts of both indictments. Although there was reference at the plea hearing to the 85% parole ineligibility requirement under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, there was no mention by defendant's counsel or the court about NERA's required five-year period of parole supervision. See N.J.S.A. 2C:43-7.2(d) (providing that "in addition to any other sentence imposed, a court . . . shall also impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first degree"). Defendant signed plea forms that indicated he was subject to a mandatory period of parole ineligibility. The NERA supplemental plea form, which would have advised defendant of the five-year supervision requirement, was not signed, although his counsel made reference at the plea hearing to "an additional form we need filled out . . . ."
On April 27, 2001, defendant was sentenced to seventeen years in prison with an 85% period of parole ineligibility and then five years of parole supervision. Several references were made at the sentencing hearing to the required five-year parole supervision period and that requirement was included in the judgment of conviction as well.
In 2002, defendant unsuccessfully appealed his sentence to this court as excessive, but he did not raise an issue there about the parole supervision to which he had been sentenced just a year earlier.
Defendant was advised on January 13, 2014 by letter of certain registration and reporting requirements he may be subject to. He filed a petition for PCR on April 8, 2014, raising for the first time his claim of ineffective assistance of counsel because he was not advised at the plea about NERA's five-year parole supervision. After oral argument on December 17, 2014, the PCR judge rejected defendant's petition as untimely under Rule 3:22-12(a)(1) because he had made no showing of "excusable neglect" sufficient to overcome the five-year time bar. The PCR judge acknowledged that NERA's parole supervision period was not mentioned at the plea hearing, but clarified that the requirement had been mentioned several times at the sentencing hearing. He concluded the issue should have been raised by defendant in a direct appeal and not as part of a PCR petition. The judge also concluded that defendant had not demonstrated a claim for ineffective assistance of counsel nor presented fact issues requiring an evidentiary hearing.
This letter was not included in defendant's appendix and was not before this court.
This is defendant's first PCR petition. References by the PCR judge to defendant's second petition are in error. In any event, the PCR judge applied the time bar applicable to first PCR petitions.
On appeal, defendant raises the following points for our consideration:
I. DEFENDANT HAS ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT DEMANDS AN EVIDENTIARY HEARING
A. Counsel's Failure to Advise Mr. Lampley of the Penal Consequences of the Plea Agreement Falls Outside the Range of Professional Competence
B. Counsel's Misrepresentation Materially Affected Mr. Lampley's decision to Plead Guilty
II. THE LOWER COURT ERRED BY NOT RELAXING THE FIVE YEAR TIME BAR PURSUANT TO RULE 3:22-12(a)(1)
II.
We affirm the denial of defendant's PCR petition because he did not satisfy the legal requirements for relief nor demonstrate any factual issues requiring a hearing.
In order to establish a prima facie case of ineffective assistance of counsel, a defendant first must show counsel made errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Defendant must assert more than a bald claim that counsel was ineffective in order to satisfy this test. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Second, defendant must show that counsel's performance actually prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In the context of a plea bargain, defendant must show a reasonable probability that "but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. Nunez-Valdez, 200 N.J. 129, 142 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (alteration in original).
An evidentiary hearing is granted at the discretion of the PCR judge, State v. Marshall, 148 N.J. 89, 157 (1997), if a prima facie case of ineffective assistance of counsel is shown and there are material issues of disputed fact that, viewed in a light most favorable to defendant, cannot be resolved by reference to the record. See State v. Jones, 219 N.J. 298, 311 (2014); State v. Preciose, 129 N.J. 451, 462-63 (1992).
The PCR judge acknowledged there was no mention at the 2001 plea hearing that defendant was subject to NERA's mandatory five-year period of parole supervision. Defendant did not fill out the additional NERA plea forms nor did the plea judge advise defendant about the requirement when defendant pled guilty. Defendant asserted, without corroboration in the record, that his counsel did not advise him about this requirement.
A defendant pleading guilty to charges should be made aware of consequences flowing from the guilty plea that are "direct" or "penal," State v. Johnson, 182 N.J. 232, 240 (2005) (quoting State v. Howard, 110 N.J. 113, 122 (1988)), because this "promotes the binding resolution of charges . . . ." Id. at 237. In Johnson, where defendant was not advised about NERA's parole supervision requirement prior to pleading guilty, the court held that "the period of NERA parole supervision constitutes both a direct and penal consequence" because the required period "may extend beyond the term of the original sentence" or, if violated, "could subject defendant to additional incarceration . . . ." Id. at 240. Although Johnson was a case where the defendant was appealing his sentence and was not a PCR petition, it may be that where NERA's parole supervision is not referenced at all by counsel that the omission may rise to the level of deficient performance within the meaning of Strickland.
We need not decide that issue, however, because defendant failed to satisfy the second prong of Strickland. Defendant acknowledged that he did not want to vacate his guilty plea. Although he grounded his request for an evidentiary hearing on a need to see if the outcome of the plea negotiation would have been different, defendant nonetheless requested that his plea be maintained. By maintaining his plea, defendant failed to establish the second required prong of Strickland that he show a reasonable probability he would not have pled guilty, but instead insisted on going to trial. DiFrisco, supra, 137 N.J. at 457. Because defendant failed to demonstrate the second prong of Strickland, he had no entitlement to an evidentiary hearing.
Parole supervision is a required part of NERA. See N.J.S.A. 2C:43-7.2(d) (providing a court "shall also impose" parole supervision). Defendant's sentence cannot be modified to exclude this statutory requirement as defendant requests.
In any event, defendant had ample ability to raise the issue earlier. He was told when he was sentenced in 2001 about the requirement. He raised no objection at that proceeding. But see Howard, supra, 110 N.J. at 125 (finding defendant's "immediate protest" upon learning of the parole ineligibility period "besp[oke] the materiality of the omitted information to his decision to enter the plea agreement") (emphasis added). Defendant's judgment of conviction included the NERA requirements. Then, when defendant directly appealed his sentence in 2002, it was only to challenge that it was excessive. An issue that reasonably could have been raised on direct appeal will not be considered for relief in a PCR petition. See R. 3:22-4(a) (barring any ground for relief for a PCR petition that was not raised on appeal that reasonably could have been raised in a prior proceeding). A PCR petition is "not a substitute for direct appeal." State v. Cerbo, 78 N.J. 595, 605 (1979).
A defendant who wants to challenge NERA's applicability must first move to vacate the guilty plea. State v. Hernandez, 338 N.J. Super. 317, 323 (App. Div. 2001). Not only does defendant want to maintain his guilty plea, he does not challenge NERA's applicability to his sentence. --------
We agree with the PCR judge that defendant additionally failed to show the "excusable neglect" necessary to file a PCR petition more than five years after sentencing. See R. 3:22-12(a)(1) (providing that no petition shall be filed more than five years after the judgment of conviction unless defendant can show the delay was due to excusable neglect and enforcement of the time bar would result in fundamental injustice); State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013). Defendant claims to have become aware of the parole supervision requirement in January 2014 when he learned he may be subject to a registration requirement, but submitted nothing to support that claim. His PCR petition was barred because it was filed more than five years after he was sentenced, the court having correctly found on these facts that defendant did not show excusable neglect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION