STATE OF NEW JERSEY v. DAVID MCFADDEN (2013)

Defendant David McFadden appeals from an order entered by the Law Division on July 26, 2011, denying his petition for post-conviction relief (PCR).  We affirm.

I.

We briefly summarize the procedural history and the facts based on the evidence presented at the plea hearing, and before the PCR judge.

On August 14, 2008, pursuant to a plea agreement, defendant pled guilty to third—degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35–7, and third-degree unlawful possession of materials to make false documents, N.J.S.A. 2C:21–2.1. In exchange for his pleas of guilty, the State agreed to recommend a sentence of nine years with fifty-four months parole ineligibility.

At the plea hearing the prosecutor informed the judge that on the possession charge, “The State's recommended sentence on that will be nine years with 54 months parole ineligibility.   The defendant is mandatory extended term because of his prior convictions.   And counsel is waiving us filing the extended term motion as a result of that.”   On the possession of materials to make false documents charge the prosecutor stated she was “recommending nine years State prison sentence on that with no period of parole ineligibility, to run concurrent.   It's my understanding that at the time of sentencing, defense counsel will be arguing for an eight–with–48 on the school zone offense and a flat-eight on the second degree offense.”

On October 10, 2008, defendant appeared for sentencing.   The judge determined that aggravating factors N.J.S.A. 2C:44–1(a)(3), (6), and (9) applied, as well as one mitigating factor, that defendant showed remorse.   The sentencing judge determined that “[t]he aggravating factors completely outweigh the mitigating factors.”   Defendant was then sentenced to an eight-year term subject to forty-eight months parole ineligibility for possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone.   Defendant was also sentenced to a concurrent eight-year term of imprisonment for unlawful possession of materials to make false documents charge.   Appropriate fines and penalties were also imposed.

On March 15, 2010 defendant filed a petition for PCR. In a July 26, 2011 order and written opinion, the PCR judge denied defendant's PCR petition.   This appeal ensued.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE ORDER DENYING POST–CONVICITON RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST–CONVICTION COURT ERRED IN DENYING PETITIONER A MEANINGFUL HEARING.

A. PETITIONER HAS ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

B. TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE PETITIONER OF THE TERMS OF THE PLEA AGREEMENT RELATING TO THE IMPOSITION OF AN EXTENDED TERM SENTENCE.

C. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN HIS ARGUMENTS REGARDING THE APPLICABILITY OF AGGRAVATING AND MITIGATING FACTORS AT SENTENCING.

POINT II

THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO DETERMINE WHAT IMPACT, IF ANY, THE POST–CONVICTION COURT'S IMPROPER DENIAL OF THE WITHIN MATTER ON PROCEDURAL GROUNDS HAD ON THE DENIAL OF RELIEF ON SUBSTANTIVE GROUNDS.

II.

We review the legal conclusions of a PCR judge de novo.  State v. Harris, 181 N.J. 391, 420–21 (2004) (citing Mickens- Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir.2004);  Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir.1993)), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed.2d 898 (2005).   Where no evidentiary hearing has been held, we “may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge].”   Harris, supra, 181 N.J. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L. Ed.2d 232 (1991)).   Thus, it is within our authority “to conduct a de novo review of both the factual findings and legal conclusions of the PCR court [.]”  Id. at 421.   Where no credibility determinations have been made, “we invoke our original jurisdiction in the review of th[e] matter.”  Ibid. Such a review is appropriate here, as there was no evidentiary hearing and no credibility determinations were made.

As a preliminary matter, we note that “[p]ost-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.”  State v. Preciose, 129 N.J. 451, 459 (1992).   The petitioner's burden is to “establish the right to [post-conviction] relief by a preponderance of the credible evidence.”   State v. Echols, 199 N.J. 344, 357 (2009).   To sustain that burden, specific facts which “provide the court with an adequate basis on which to rest its decision” must be articulated.  State v. Mitchell, 126 N.J. 565, 579 (1992).

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance.  Preciose, supra, 129 N.J. at 462.   In determining whether a prima facie claim has been established, the facts should be viewed “in the light most favorable to a defendant.”  Id. at 462–63.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).   A defendant first must establish that his attorney's performance was deficient.  Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693).   To do so, the defendant must show that his attorney's handling of the case “fell below an objective standard of reasonableness.”   Id. at 688, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.

A defendant also must establish that his attorney's deficient performance prejudiced his defense.  Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693).   To meet this part of the test, a defendant must show that there is “ ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”  Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698).

We affirm primarily for the reasons set forth in Judge Callahan's cogent and comprehensive written opinion.   The PCR judge determined that defendant did not establish a claim for ineffective assistance of counsel stating:

First, Petitioner's claim that his counsel was ineffective for failing to argue all mitigating factors is without merit and contradicted by the record.   Petitioner does not assert factors that trial counsel could have successfully argued during sentencing.

Nevertheless, Petitioner's attorney did argue all the pertinent mitigating factors.   Petitioners attorney asked the Court to consider the following:

“․ he's forthright, Your Honor.   He's not making, you know, any excuses.   He's been involved in stuff.   He has his own substance abuse problems.   And he simply has not been able to overcome it.   I'd ask the Court- the recommendation here is for nine and 54, but I believe the Court has some discretion to sentence Mr. McFadden to something less.   I'd ask the Court to consider sentencing him to an eight with 48.”

Subsequently, Petitioner was sentenced to the lower end of the range bargained for, 8 years with 48 months of parole ineligibility, as requested by Petitioner's counsel.

Petitioner also asserts that the aggravating factors were improperly applied by this Court and should have been disputed by trial counsel.   However, there is nothing in the record to indicate that the mitigating factors would have outweighed the aggravating factors and therefore, the prejudice prong on Strickland would not be met.   In short, Petitioner has not shown his attorney's representation was deficient within Strickland v. Washington, 466 U.S. 668 (1984) and State v. Fritz, 105 N.J. 42 (1987) and therefore, Petitioner's Sixth Amendment right to counsel was not violated.

Second, Petitioner's claim that his counsel was ineffective for failing to advise the defendant that he faced an extended term is also without merit and contradicted by the record.   Petitioner asserts that he was unaware that he faced an[ ] extended term sentence and believed that a motion must be filed first in order for an extended term sentence to be imposed.   However, the plea form signed by Petitioner clearly indicated that the charges against him require a mandatory extended term sentence, and that he faced a recommended sentence by the State of 9 years with 54 months of parole ineligibility.   Further, at petitioner's plea hearing the State reiterated the information contained in the plea forms[.]

As to defendant's claim that the sentencing court's application of the aggravating and mitigating factors was improper, the PCR judge stated that the sentencing court

clearly provided its reasons on the record for imposing its sentence upon petitioner. prior to balancing the aggravating and mitigating factors, the Court discussed Petitioner's prior record and his risk of recidivism.   The Court observed:

The aggravating and mitigating factors are the same on each.   The mitigating factors are remorse, The aggravating factors are the strong need to deter the defendant and others, the entire prior record, risk [of] re-involvement and, of course, it's the prior record, simply not based on one or two, but all these multiple convictions that are now up to nine.   The aggravating factors completely and substantially outweigh the mitigating factors.

We also add the following brief comment.   Defendant further argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition.   Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required.  Preciose, supra, 129 N.J. at 462.

Defendant failed to make a prima facie showing of ineffective assistance of counsel within the Strickland/Fritz test.   Accordingly, we conclude that the PCR judge correctly denied defendant's petition.

Affirmed.

PER CURIAM