Opinion
DOCKET NO. A-5071-14T1
01-23-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYRONE LANIER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-11-0986. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Tyrone Lanier appeals from a March 26, 2015 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We derive the following facts from the record. On November 29, 2007, a grand jury indicted defendant and four co-defendants for second-degree burglary, N.J.S.A. 2C:18-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (counts two and five); second-degree robbery, N.J.S.A. 2C:15-1 (counts three and four and six through ten); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven); and second-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts twelve through twenty). The offenses forming the basis of these charges occurred on July 17, 2007. While these charges were pending, on September 12, 2008, defendant was sentenced for a violation of parole in a different matter.
On February 18, 2009, defendant pled guilty in this matter to the two counts of first-degree robbery. In exchange, the State agreed to dismiss all remaining charges and recommend a sixteen-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent to a five-year sentence defendant was then serving in another matter. Defendant preserved his right to argue for a lesser sentence at sentencing.
Sentencing was originally scheduled for May 29, 2009, but was adjourned to December 18, 2009. At sentencing, defense counsel agreed that 259 days for the period from September 12, 2008 to May 28, 2009 constituted gap time credits. In addition, the parties agreed that although the days for the period from May 29, 2009 to December 17, 2009 should be gap time credits, defendant would receive those days as additional jail credits due to the delay in sentencing. The judge imposed a sixteen-year term of imprisonment subject to NERA to run concurrent to the five-year sentence defendant was then serving. The judge awarded defendant a total of 659 days of jail credits, later amended to 626 days, for the period from July 17, 2007 to September 11, 2008, and May 29, 2009 to December 17, 2009, and 259 days of gap time credits for the period from September 12, 2008 to May 28, 2009.
Defendant appealed his sentence, arguing that because he was sentenced on September 12, 2008 on the violation of probation before the imposition of his sentence in the present case, the 259 days of gap time credits should have been counted as jail credits pursuant to State v. Hernandez, 208 N.J. 24 (2011). We heard the appeal on our Excessive Sentencing Oral Argument (ESOA) calendar, remanded for reconsideration of credits in light of Hernandez, and ordered the parties to brief the issue before the trial court. State v. Lanier, No. A-0132-11 (App. Div. Aug. 29, 2012). Defendant did not file a petition for certification with our Supreme Court.
The record does not indicate that defendant proceeded on the remand. Rather, the record indicates on May 16, 2013, defendant filed a pro se PCR petition, arguing that appellate counsel rendered ineffective assistance by disregarding defendant's request to argue the sentence was excessive, and instead, raised the gap time credits issue. In an amended PCR petition and supplemental certification, defendant added that defense counsel gave him "misinformation and ill-advice about how a concurrent sentence works and how jail time would be applied in [his] case." Defendant averred that he "was never told that [he] would not receive jail credits, but rather only gap time credits for a substantial part of [his] sentence." He also certified that he "understood a concurrent sentence to mean that [he] would get credit for the time [he] already served" and that was "how the plea was presented to [him] by [defense counsel]." Defendant did not certify that he would not have pled guilty had he known that the 259 days were gap time credits rather than jail credits. Defendant also certified that appellate counsel was ineffective in not arguing that the trial court failed to consider various mitigating factors. However, defendant did not state what, if any, mitigating factors applied.
In a March 26, 2015 oral opinion, the PCR judge held that defendant failed to prove the two prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), finding as follows:
The record belies defendant's claim [that he did not understand gap time and jail credits have been agreed upon at the time of the plea]. [Defendant] . . . said at the plea hearing [that he had] enough time to speak with an attorney, he was satisfied with his representation. He read every line of the plea form. His attorney confirmed that each part of the agreement [was] explained fully. [Defendant] knows he pled[] voluntarily. [defendant stated that] [n]o one forced him, coerced him, pressured him. . . . [A]t sentencing, they discussed jail credit[,] gap time [credit]. [It was] [m]ade clear that the State was consenting to two separate types of credits. [Defendant was] [g]iven an opportunity to address the [c]ourt. [Defendant] [n]ever stated any portion of the agreement was unclear to him. [Defendant] [d]idn't indicate he misunderstood [a] portion of the plea. The parties [outlined] their positions in jail credits, gap time credits. And [defendant] receive[d] jail credits that defense counsel, at that time, acknowledged should be gap [time] credits. So, [defendant] received the benefit of the jail credits along with being sentenced according to the plea. . . . [D]espite defendant's attempt to say he was unnoticed . . . [the record] presents the opposite.
So, to say also the second [Strickland] prong, say [defendant] would have rejected the
plea offer, proceeded at trial on [a twenty-one] count indictment, faced all these various charges, facing [forty] years, or potentially more, they run . . . consecutive. The attorneys worked -- he has a plea agreement. [Defendant] got a [sixteen-year] sentence, concurrent. Jail credits would not have been given to him otherwise, except for the [plea] agreement.This appeal followed. On appeal, defendant raises the following contentions:
POINT ONE
[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO
THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT DENIED RELIEF WITHOUT STATING FINDINGS OF FACT OR CONCLUSIONS OF LAW.
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance, material issues of disputed fact lie outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). To establish a prima facie claim of ineffective assistance of counsel, the defendant
must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.With respect to a guilty plea, our Supreme Court has explained that
Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).]
[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show 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.We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. See R. 3:22-10; State v. Preciose, 129 N.J. 451, 462 (1992). We discern no abuse of discretion here.
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
Jail credits are provided "for any time served in custody . . . between arrest and the imposition of a sentence." R. 3:21-8. Jail credits "are applied to the 'front end' of a defendant's sentence, meaning that he or she is entitled to credit against the sentence for every day defendant was held in custody for that offense prior to sentencing." Hernandez, supra, 208 N.J. at 37 (quoting Booker v. N.J. State Parole Bd., 136 N.J. 257, 263, 265 (1994)). "The practical effect of that allocation is that jail credits will 'reduce a[] [parole] ineligibility term as well as the sentence imposed.'" Ibid. (quoting State v. Mastapeter, 290 N.J. Super. 56, 64 (App. Div.), certif. denied, 146 N.J. 569 (1996)). "[O]nce the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8." Id. at 50.
Gap time credit is so called because N.J.S.A. 2C:44-5(b) "awards a defendant who is given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." Id. at 38. A defendant is entitled to gap time credit when: "'(1) the defendant has been sentenced previously to a term of imprisonment[;] (2) the defendant is sentenced subsequently to another term[;] and (3) both offenses occurred prior to the imposition of the first sentence.'" Ibid. (alterations in the original) (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). If these three facts are established, "the sentencing court is obligated to award gap-time credits[.]" Ibid. "Unlike jail credits, gap-time credits are applied to the 'back end' of a sentence." Ibid. (quoting Booker, supra, 136 N.J. at 260).
Here, there was a discussion at sentencing of jail credits versus gap time credits, and it is clear that the parties had negotiated the credits so that defendant would receive additional jail credits due to the delay in sentencing in this case. Defendant was present at sentencing and voiced no misunderstanding about or objection to the jail or gap time credits being awarded.
Further, even if defense counsel did not adequately explain the credits, defendant has not shown there was a reasonable probability he would not have pled guilty had he known that the 259 days were gap time credits. Defendant did not certify that but for defense counsel's alleged error, he would not have pled guilty. In addition, defendant was facing multiple charges carrying a potential sentence well beyond the sixteen years he received pursuant to the plea agreement, including a total of forty years on the two robbery charges to which he pled guilty. Moreover, defendant did not assert that he was innocent of any of the charges.
With respect to appellate counsel, defendant argues in his merits brief that counsel failed to highlight his specific role in the crimes and argue that his son was dependent on him as a mitigating factor. However, defendant does not explain what role he played in the crimes or how that information could have influenced his sentence. Nor does defendant describe any "excessive hardship" to his son. See State v. Dalziel, 182 N.J. 494, 505 (2005) (holding that N.J.S.A. 2C:44-1(b)(11) is an inapplicable mitigating factor where there was no evidence that the defendant lived with or supported his fiancée and child); State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1993) (holding that N.J.S.A. 2C:44-1(b)(11) is an applicable mitigating factor when a defendant is the custodial parent of minor children). Defendant has not shown that he lived with and supported his son. His bare assertions are insufficient to establish that the outcome of his appeal would have been different had appellate counsel argued his sentence was excessive. Because defendant failed to establish a prima facie case of ineffective assistance of defense and appellate counsel, he was not entitled to an evidentiary hearing.
Lastly, we have considered defendant's argument that the PCR judge failed to make adequate factual findings or legal conclusions in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION