Opinion
DOCKET NO. A-0667-13T4
04-02-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JERMAINE NADAL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jennifer J. Pinales, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-03-0515. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jennifer J. Pinales, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was charged with aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); sexual assault, N.J.S.A. 2C:14-2(c)(1); and aggravated assault, N.J.S.A. 2C:12-1b(1). On May 22, 2008, he pled guilty to second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), specifically, attempting to cause serious bodily injury. Pursuant to the plea agreement, the State agreed to recommend a term of ten years, with an eighty-five percent period of parole ineligibility and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently with a ten-year sentence defendant was then serving. The State also agreed to waive its right to seek the imposition of a discretionary extended term.
During the plea colloquy, defendant admitted that he purposely attempted to and did cause serious bodily injury to the victim. He admitted he struck the victim about the face several times, seriously injuring one of her eyes. Defendant also acknowledged on the record his awareness of the mandatory parole restrictions under NERA, and the standard three page plea form specifically reflects the mandatory period of parole ineligibility for a ten-year sentence is eight years and six months.
On July 3, 2008, defendant was sentenced in accordance with the plea agreement, and the remaining two counts were dismissed. According to the amended judgment of conviction, defendant was given 1706 days of gap-time credit in accordance with N.J.S.A. 2C:44-5(b)(2). Defendant did not file a direct appeal from his conviction and sentence.
On April 22, 2013, defendant, who was represented by counsel, filed a PCR petition and brief in which he argued that his attorney was ineffective for failing to advise him before he pled guilty that gap-time credits cannot be applied to reduce the parole ineligibility period. See Sheil v. N.J. State Parole Bd., N.J. Dept. of Corr., 244 N.J. Super. 521, 527 (App. Div. 1990). Defendant conceded that when he pled guilty, he was aware he had to serve a minimum of eight and one-half years. However, he claimed that based upon information provided by counsel, he believed that the gap-time credits would reduce his sentence to five and two-fifths years, of which he would have to serve only three and nine-tenths years.
Defendant also claimed in his petition that plea counsel was ineffective for failing to secure before he pled guilty a copy of a hospital chart, some laboratory reports, and the grand jury transcript.
In addition to seeking post-conviction relief under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for the alleged ineffectiveness of counsel, defendant sought to withdraw his guilty plea under State v. Slater, 198 N.J. 145 (2009). On September 23, 2013, the PCR court denied defendant's petition.
Defendant did not file a separate plea withdrawal motion under Rule 3:21-1.
The order denying the petition was not included in the record.
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Defendant presents the following issues for our consideration in his appeal.
POINT I: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING ON MR. NADAL'S CLAIM THAT HE SHOULD BE ALLOWED TO WITHDRAW HIS PLEA BASED ON THE INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant filed a supplemental pro se brief in which he presents the following arguments:
POINT I: APPELLANT WOULD ASK THE COURT TO TAKE JUDICIAL NOTICE ACCORDING TO R. 1:38-8 TO CORRECT THE RECORD OF APPELLANT'S COUNSEL'S DIRECT PCR APPEAL BRIEF.
POINT II: TRIAL COURT'S STATEMENT THAT THE APPELLANT CANNOT ESTABLISH THAT HE ENTERED THE PLEA BECAUSE OF THE APPLICATION OF GAP TIME CREDITS TO HIS SENTENCE IS PREJUDICIAL AND ERRONEOUS.
POINT III: GAP TIME CREDITS OF 1,707 DAYS NOT BEING APPLIED TO APPELLANT'S SENTENCE BECAUSE OF NERA IS A DIRECT PENAL CONSEQUENCE AND THUS APPELLANT SHOULD HAVE BEEN MADE AWARE OF THE NON-APPLICATION OF THESE CREDITS TOWARDS HIS SENTENCE.We are not persuaded by any of these arguments and affirm.
POINT IV: APPELLANT HAS BARED AND PROVED HIS POST CONVICTION RELIEF BY A PREPONDERANCE OF CREDIBLE EVIDENCE AND THE COURT IN ITS DECISION TO DENY THE APPELLANT HIS POST CONVICTION RELIEF WAS PREJUDICIAL ERROR.
POINT V: STATE'S PRESENTATION OF APPELLANT'S TRIAL COUNSEL BEING EFFECTIVE IS A SEVERE CONTRADICTION TO THE STATEMENTS MADE BY THE TRIAL COUNSEL POST SENTENCE, THAT IF VIEWED BY ITS WORDING AND MEANING WOULD PROVE OF THE APPELLANT'S PRIMA FACIE SHOWING.
POINT VI: THE COURT WAS IN ERROR BY STATING THAT ONLY AN ATTEMPT TO COMMIT SERIOUS BODILY INJURY IS SUFFICIENT ENOUGH FOR DEFENDANTS CONVICTION OF AGGRAVATED ASSAULT
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, supra, 466 U.S. at 668, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the following two-prong test: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
To meet the second prong when seeking to withdraw a guilty plea premised on ineffective assistance of counsel, a defendant must satisfy a modified Strickland standard:
When a guilty plea is part of the equation, . . . "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.'"Relief under the second prong requires a petitioner to "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
[State v. Nunez-Valdez, 200 N.J. 129, 139, (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
If a defendant seeks to withdraw a guilty plea for reasons other than the ineffectiveness of counsel, he must meet the following four-part test:
(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.Moreover, if the application to withdraw the guilty plea is made after sentencing, a defendant must fulfill the "manifest injustice" standard in Rule 3:21-1. Id. at 158.
[State v. Slater, 198 N.J. 145, 157-58 (2009).]
On appeal, defendant repeats the same arguments he presented to the PCR court, although he does not raise the issue that plea counsel was ineffective for failing to secure a copy of laboratory reports or the grand jury testimony.
As for the claim counsel was deficient for failing to secure the hospital records, defendant contends the hospital chart might have revealed the victim was not seriously injured as a result of his actions. If so, defendant maintains, the charge that he attempted to cause serious bodily injury in violation of N.J.S.A. 2C:12-1(b)(1) would have been undermined. However, the severity of a victim's injuries is irrelevant when the charge is attempting to cause serious bodily injury. A person may commit aggravated assault pursuant to N.J.S.A. 2C:12-1(b)(1) without actually causing any injury, such as when the actor attempts to cause a serious injury. See State v. Mingo, 263 N.J. Super. 296, 305 (App. Div. 1992) (D'Annunzio, J., dissenting), rev'd on dissent 132 N.J. 75 (1993); 33 New Jersey Practice, Criminal Law §9.2, at 311 (Gerald D. Miller) (2005) (noting that there can be a conviction of attempting to cause serious bodily injury even if no injury occurred.) Second, even if the victim's medical records were relevant, defendant has not presented any evidence of what the hospital chart contained. His claim the information in the chart may have affected his decision to plead guilty is nothing but mere supposition.
With regard to his claim that plea counsel failed to accurately advise how gap-time credits were applied, defendant fails to make a showing that, had he known he was going to be ineligible for parole for eight and one-half years, it would have been rational to reject the plea bargain and proceed to trial given the charges he faced and the potential for a far greater sentence.
Defendant's argument the withdrawal of his plea is warranted under Slater is devoid of merit. Defendant has not asserted any "colorable claim of innocence." We need not discuss the remaining Slater factors as, on this score alone, defendant cannot satisfy the requisite standard.
To the extent that any argument raised by defendant has not been explicitly addressed in this opinion, it is because we are satisfied that the arguments lack 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