STATE OF NEW JERSEY v. DAMION ALSTON (2011)

Defendant Damion Alston appeals from an October 3, 2008 order denying his petition for post-conviction relief.   We affirm.

I

In October 2001, defendant agreed with two co-defendants to engage in the armed robbery of a jewelry store.   Pursuant to the plan, defendant drove the two accomplices to the jewelry store, where the co-defendants carried out the robbery and shot the store owner to death.   Defendant drove the co-defendants from the scene and shared in the proceeds of the robbery.

After being indicted for first-degree murder, defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4, and related robbery and weapons offenses, pursuant to a plea agreement under which the State would recommend an aggregate prison sentence of twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant set forth a detailed factual basis for the plea.   In response to further questioning by the judge, he also indicated that he understood that if the judge accepted the plea agreement, he would have to serve “17 years in jail” before becoming eligible for parole.

Gap time was not mentioned at the plea hearing, and at no time did defendant indicate that gap time played any role in his decision to plead guilty.   Consistent with the plea agreement, on May 30, 2003, defendant received an aggregate twenty-year NERA sentence, which was made concurrent to a sentence he was already serving for a drug offense.   At the sentencing, the judge indicated that defendant was entitled to 505 days of gap time.   We affirmed the sentence on an excessive sentence calendar.  State v. Alston, Docket No. A-5120-03 (App.Div. Jan. 12, 2005), certif. denied, 183 N.J. 258 (2005).

Defendant then filed the PCR petition from which this appeal arose.   In his petition, defendant contended that his trial attorney promised him that the 505 days of gap time, to which he was entitled, would be subtracted from the seventeen-year period of NERA parole ineligibility.   Instead, the time will be subtracted from the remaining years of the sentence after defendant serves the NERA portion.   See Richardson v. Nickolopoulos, 110 N.J. 241, 245 (1988).   Defendant contended that his attorney was ineffective for giving him inaccurate advice.

In an oral opinion placed on the record on October 3, 2008, Judge Nelson, who had also taken defendant's guilty plea and imposed sentence, rejected the PCR petition.   Judge Nelson found no likelihood that defendant could succeed on the merits of his claim and therefore that he was not entitled to an evidentiary hearing.   First, he considered that defendant failed to raise the gap time issue at the plea hearing, although the judge had explicitly advised him that he would have to serve seventeen years before becoming parole eligible.   Second, the judge considered that there was “certainly no dispute as to the allocution of [defendant's] guilt.”   Finally, the judge reasoned that even if defendant had misunderstood the way his gap time would be applied, there was no chance on this record that defendant would have rejected the plea bargain and risked life in prison by going to trial on the murder charge.

II

In State v. Nunez-Valdez, 200 N.J. 129 (2009), the Supreme Court most recently addressed the standards applicable to a PCR claim seeking to withdraw a guilty plea based on inaccurate legal advice about the material consequences of a plea agreement.   To justify a plea withdrawal, a defendant must satisfy the traditional Strickland/Fritz ¹ standard, as modified to apply to guilty pleas rather than convictions after trial:

For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that “[defense] counsel's performance was deficient,” and that “there exists ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”   We approved of that two-part test in State v. Fritz, 105 N.J. 42, 58 (1987), in which we held that the federal standard for evaluating an ineffective-assistance-of-counsel claim approved in Strickland, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674, should apply in defining our state constitutional guarantee of effective assistance of counsel.

When a guilty plea is part of the equation, we have explained that “[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.’ ”

[Id. at 138-39 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (emphasis added).]

See also Padilla v. Kentucky, _ U.S. _, 130 S.Ct. 1473, 1485, 176 L. Ed.2d 284 (2010) (to satisfy the second Strickland prong, “a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances”).

Similarly, in a case involving a motion to withdraw from a plea bargain, the Court recently held that several factors are relevant to the decision whether to permit a defendant to withdraw a guilty plea.   Those factors include whether the defendant has presented “plausible” evidence to support a “colorable claim of innocence”;  “the nature and strength of defendant's reasons for withdrawal”;  and the existence of a plea bargain.”  State v. Slater, 198 N.J. 145, 157-59 (2009).

On this appeal, defendant raises the following points for our consideration:

Point I:  NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial Counsel Failed To Properly Advise The Defendant On The Imposition Of Gap Credits On His Overall Sentence.

B. The PCR Court Applied The Incorrect Standard In Assessing Whether Defendant Was Provided Effective Assistance Of Trial Counsel.

POINT II:  NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

In a pro se supplemental brief, defendant repeats his claim that his attorney convinced him to plead guilty based on misinformation concerning the way gap time would be applied to his sentence.

Having reviewed the appellate record properly presented to us, we conclude that all of defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(2).   We affirm substantially for the reasons stated in Judge Nelson's opinion.   We add the following comments.

We agree with Judge Nelson that defendant did not present a prima facie case of ineffective assistance of counsel so as to entitle him to an evidentiary hearing on his PCR petition.   See State v. Preciose, 129 N.J. 451, 462-63 (1992).   In particular, he made no showing that he could satisfy the second Strickland prong.   At the time he entered into the plea agreement, defendant, who had an extensive criminal record, was facing a trial on charges of first-degree murder and felony murder, for which he could have received a life sentence if convicted.   In his PCR petition, defendant presented no evidence that he was innocent.   See Slater, supra, 198 N.J. at 158-59.   To the contrary, his detailed testimony at the plea hearing established his guilt of the charges to which he pled guilty.²  Based on the record presented to the PCR court, we agree with Judge Nelson that, regardless of how gap time would apply to the sentence, there is no “reasonable probability” that defendant would have rejected the plea agreement and risked going to trial.   See Nunez-Valdez, supra, 200 N.J. at 139.

Affirmed.

FOOTNOTES

FN1. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984);  State v. Fritz, 105 N.J. 42 (1987)..  FN1. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984);  State v. Fritz, 105 N.J. 42 (1987).

FN2. Defendant's pro se brief includes a certification dated May 11, 2010, which was not presented to the PCR judge.   Contrary to his sworn testimony at the plea hearing, in the certification defendant asserts that he did not know his co-defendants were armed or were planning a robbery.   He also attacks the validity of his confession.   In deciding this appeal, we can only consider materials that were in the record before the PCR judge, and we therefore have not considered defendant's certification.   See State v. Harvey, 151 N.J. 117, 201-02 (1997)..  FN2. Defendant's pro se brief includes a certification dated May 11, 2010, which was not presented to the PCR judge.   Contrary to his sworn testimony at the plea hearing, in the certification defendant asserts that he did not know his co-defendants were armed or were planning a robbery.   He also attacks the validity of his confession.   In deciding this appeal, we can only consider materials that were in the record before the PCR judge, and we therefore have not considered defendant's certification.   See State v. Harvey, 151 N.J. 117, 201-02 (1997).

PER CURIAM