Opinion
DOCKET NO. A-3872-14T2
07-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD L. SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 12-12-2945 and 09-07-0150. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from a February 17, 2015 order denying his petition for post-conviction relief, arguing:
POINT I
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE HE WAS UNAWARE OF THE TERMS AND CONSEQUENCES OF HIS PLEA OFFER.
A. DEFENDANT'S PLEA WAS NOT KNOWINGLY, VOLUNTARILY OR INTELLIGENTLY GIVEN.We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons expressed by the judge in his written opinion. We add only the following brief comments.
For a defendant to obtain relief based on ineffective assistance grounds, he or she must show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his or her right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). Both the United States Supreme Court and the New Jersey Supreme Court have extended the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
To establish deficient performance, defendant must show "counsel's representation fell below an objective standard of reasonableness." Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406 (citation omitted). To establish prejudice, defendant must demonstrate with "reasonable probability" that the result would have been different but for counsel's deficient performance. Id. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Defendant urges he entered an unknowing guilty plea because of ineffective assistance from plea counsel. Defendant entered a negotiated plea agreement to weapons charges. At the time, defendant was subject to a parole detainer in New York. The judge rejected counsel's request that the New Jersey sentence run concurrent with the pending New York matter, explaining the court lacked jurisdiction to enforce such terms.
Defendant's argument is belied by the record. Defendant indicated on his plea form that he was not subject to parole and that parole consequences to entering the plea were not applicable. Indeed, at the plea hearing, defendant confirmed the answers on his plea form were truthful and that he had no questions before entering his plea voluntarily. Moreover, defense counsel requested that the judge impose concurrent sentences between this and the New York matter. Counsel's performance was not ineffective. Additionally, as the judge noted, the court lacked the ability to bind New York to impose concurrent sentences between New Jersey and New York. Breeden v. N.J. Dep't of Corr., 132 N.J. 457, 465 (1993) (explaining the United States Constitution "does not require that one state give 'full faith and credit' to the sentencing disposition of a sister state" (citing Nelson v. George, 399 U.S. 224, 229, 90 S. Ct. 1963, 1966, 26 L. Ed. 2d 578, 582 (1970))). As a result, defendant suffered no prejudice from his favorable plea agreement.
An evidentiary hearing should be conducted when the facts, viewed in the light most favorable to defendant, establish a prima facie showing of ineffective assistance of counsel and demonstrate a reasonable likelihood of success under the Strickland test. State v. Preciose, 129 N.J. 451, 462-63 (1992); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring a defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999).
Defendant's appeal presents mere bald assertions. Because defendant has not presented a prima facie case of ineffective assistance of counsel, he is not entitled to an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION