Opinion
DOCKET NO. A-3404-13T4
11-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEOTIS FOWLER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 94-03-0337. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, on the 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.
On September 18, 1995, defendant pled guilty to third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). On that same day the court imposed, consistent with the plea agreement, a five-year flat sentence, to be served concurrently to a thirty-year federal sentence defendant was then serving. Also in accordance with the terms of the plea agreement the court dismissed four pending charges, which included another charge in a separate indictment for third-degree possession of a controlled dangerous substance with intent to distribute. Defendant did not file a direct appeal from his conviction or sentence.
On February 7, 2012, defendant filed his first PCR petition. This petition was subsequently dismissed. It is not disputed the petition was dismissed in error. Defendant re-filed his petition on February 13, 2013.
A copy of this petition was not in the record. --------
In his petition defendant contended plea counsel advised that he would be pleading guilty to possession of cocaine, not possession with intent to distribute. Defendant further claimed counsel failed to inform him that a conviction for possession with intent to distribute may lead to an enhancement of a future sentence. Defendant maintained that had he been aware of the effect of pleading guilty to his particular offense, he would not have pled but would have proceeded to trial. In 2007, the federal court enhanced the federal sentence he was then serving by 192 months because he was convicted of the present state offense.
Defendant also complained counsel failed to inform him that he could have filed a petition for post-conviction relief. He did not discover he could have sought redress through the filing of a PCR petition until the five-year limitations period provided in Rule 3:22-12(a)(1) had passed. Finally, defendant contended plea counsel failed to file a direct appeal.
On December 5, 2013, the PCR court denied defendant's petition. The court found the petition time-barred under Rule 3:22-12(a)(1). Further, because defendant failed to show his delay in filing the petition was due to excusable neglect and that there was a reasonable probability enforcement of the time bar would result in a fundamental injustice, the time limitation imposed by the Rule could not be tolled.
Specifically, the PCR court found defendant's argument he was unaware of the five-year time bar unavailing, observing ignorance of the law was not excusable neglect, citing State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (holding that a mistake of law does not amount to excusable neglect and a petition filed beyond five years is barred), aff'd as modified, 162 N.J. 240, (2000). The PCR court also concluded the subsequent conviction in federal court was not an exceptional circumstance warranting a relaxation of the five-year time bar.
Notwithstanding that the petition was untimely, the PCR court nevertheless considered defendant's argument he received ineffective assistance from plea counsel. First, the court noted defense counsel was not obligated to advise a client that the entry of a conviction following a guilty plea might enhance a subsequent sentence, citing State v. Wilkerson, 321 N.J. Super. 219, 227 (App. Div.), certif. denied, 162 N.J. 128 (1999) (holding defense attorney's failure to advise defendant of possible enhancement consequences of future aberrant conduct is not ineffective assistance of counsel).
Second, the PCR court rejected defendant's contention that had he known of the potential for an enhanced sentence in the future if convicted of the subject offense, he would have opted to try the case instead. The court found implausible defendant's claim he would have risked going to trial, given the other four charges against him and the prospect he would have faced a lengthier sentence if he did not prevail.
Third, the court rejected defendant's claim that plea counsel informed him that he would be pleading guilty only to possession of cocaine. The PCR court noted that the transcript of the plea hearing revealed defendant had expressly acknowledged he knew he was pleading guilty to possession of a controlled dangerous substance with the intent to distribute. Fourth, as for the claim counsel failed to file a direct appeal, the PCR court noted defendant failed to identify any issues plea counsel should have appealed.
Defendant presents the following issues for our consideration in his appeal.
POINT ONE: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING
Defendant's specific arguments on appeal are essentially the same that were raised before the PCR court.A. The Five Year Time Bar Should Have Been Relaxed
B. Ineffective Assistance of Trial Counsel
C. The Failure to File an Appeal.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated 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 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors 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.
In the context of a guilty plea, a defendant claiming ineffective assistance of counsel must show that his attorney misinformed him or otherwise rendered inadequate legal assistance in the plea process, and "'that there is a reasonable probability that, but for counsel's errors, [defendant] would not have pled guilty and would have insisted on going to trial.'" See State v. Gaitan, 209 N.J. 339, 350-51 (2012) (quoting State v. Nunez-Valdez, 200 N.J. 129, 139 (2009)). To satisfy the second prong, defendant must convince the court that it would have been rational to reject the proffered plea in favor of a trial. See Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
We have carefully reviewed the record and are satisfied defendant failed to make a prima facie showing of ineffectiveness of plea counsel within the Strickland-Fritz test, and affirm for substantially the same reasons set forth in Judge Thomas W. Sumners's comprehensive written decision dated December 5, 2013. For the reasons stated in his opinion, Judge Sumners correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION