State of New Jersey v. Luis Cream ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3991-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS CREAM,
Defendant-Appellant.
_______________________
Submitted September 16, 2024 – Decided October 15, 2024
Before Judges Berdote Byrne and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 19-03-0502.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Dianne Glenn, Designated Counsel, on the
briefs).
William E. Reynolds, Atlantic County Prosecutor,
attorney for respondent (Matthew T. Mills, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief
("PCR"), claiming ineffective assistance of trial and appellate counsel in failing
to correct the record regarding the actual number of his prior operating a vehicle
under the influence of drugs or alcohol ("DUI") offenses and in finding Rule
3:22-4 barred his PCR petition because it included issues he did not raise on
direct appeal. We agree with the trial court that defendant failed to demonstrate
a prima facie case of ineffective assistance of counsel because the sentencing
court did not rely upon the actual number of prior DUIs in its determination to
suspend defendant's driving privileges for fifteen years – the only issue before
us. Additionally, because we address defendant's PCR petition substantively,
we decline to address whether the defendant's petition was barred by Rule 3:22-
4.
I.
We derive the following facts from the record. After ingesting alcohol in
a volume registering more than twice the legal limit, defendant caused a car
accident resulting in the death of his passenger, the mother of two of his
children. The driver and passenger of another vehicle involved in the accident
also suffered injuries.
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Defendant was charged with second-degree reckless death by auto, in
contravention of N.J.S.A. 2C:ll-5(a) (count one); and two counts of fourth-
degree assault by auto, in contravention of N.J.S.A. 2C:12-l(c)(2) (counts two
and three). He faced a maximum of thirteen years in prison.
On September 16, 2019, defendant entered a guilty plea to all three counts
in exchange for a recommendation of a maximum six-year prison term with an
85% parole disqualifier pursuant to the No Early Release Act ("NERA")1 for
count one. Defendant reserved the right to argue for a sentence in the third-
degree range, with a minimum three-year term subject to NERA. On counts two
and three, the State recommended a concurrent eighteen-month flat prison term.
Defendant also indicated an intention to pursue the statutory mandatory
minimum five-year driver's license suspension.
Defendant was sentenced to an aggregate six-year prison term with an
85% parole disqualifier and three years of parole supervision on count one, and
two eighteen-month flat prison terms on counts two and three, to run
concurrently with count one. The trial court also suspended defendant's driving
privileges for fifteen years. Requisite fines and penalties were imposed, and the
court dismissed the traffic tickets including a DUI citation.
1
N.J.S.A. 2C:43-7.2.
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Defendant filed a direct appeal, claiming solely the excessiveness of the
sentence, and the matter was heard on the excessive sentence oral argument
calendar, where we affirmed the sentence. State v. Cream, No. A-1900-19 (App.
Div. Sept. 23, 2020). Defendant did not seek certification to the Supreme Court.
Defendant subsequently filed a motion to reduce the sentence, which was also
denied. Thereafter, defendant filed his first petition for PCR, which was denied.
This appeal followed.
II.
The sole issue before us is whether defense counsel's failure to accurately
read and argue defendant's prior history of DUI convictions before the
sentencing and appellate courts, for the purposes of the fifteen-year suspension
of defendant's driver's license, triggers the second prong of Strickland v.
Washington, 466 U.S. 668 (1984). We agree with the PCR court it does not and
affirm.
A trial court's decision to deny a PCR petition without an evidentiary
hearing is reviewed de novo. See State v. Jones, 219 N.J. 298, 311 (2014). To
establish a claim of ineffective assistance of counsel, a defendant must satisfy
the two-prong Strickland test: (1) "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
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Amendment," and (2) "the deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-prong test in New Jersey).
With respect to prong one, a defendant must establish that "counsel's
representation fell below an objective standard of reasonableness." Strickland,
466 U.S. at 688. Pursuant to prong two, a defendant must demonstrate "a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694.
The parties concede defendant's driver's abstract before the court on the
date of sentencing demonstrated defendant had four prior DUIs – an inaccurate
number as defendant had two prior DUI convictions. Defendant maintains he
has established a prima facie case of ineffective assistance of trial counsel based
upon his trial and appellate counsel's failure to correct the record and inform the
court of the correct number of prior DUIs.
N.J.S.A. 2C:11-5(b)(4) provides if a driver under the influence of alcohol
causes the death of another by recklessly driving a motor vehicle, the driver's
"license to operate a motor vehicle shall be suspended for a period of between
five years and life, which period shall commence upon completion of any prison
sentence imposed upon that person." Ibid.A-3991-22
5
Thus, although the mandatory minimum suspension was a period of five
years, defendant was facing the possibility of a lifetime suspension of driving
privileges, regardless of the correct number of prior DUIs. As recognized by
the PCR court, the sentencing court did not specifically reference the number of
prior DUI convictions in its decision to revoke defendant's driving privileges for
fifteen years. Instead, it called defendant a "scofflaw" and mentioned
"defendant's very lengthy history of driving infractions, including prior
convictions for driving under the influence and driving while suspended or
revoked" before imposing the fifteen-year license suspension.
Likewise, the PCR court, in denying the petition, found the "driver's
license suspension [to be] appropriate," and it should not "modify [the
suspension] on this record," stressing the severity of the consequences, which
included one death and two other injuries.
We agree with the PCR court that, absent a specific mention of the precise
number of prior DUI convictions by the sentencing judge, defendant's appeal
fails to demonstrate ineffective assistance of counsel pursuant to Strickland.
Even assuming defendant meets the first prong of Strickland because defense
counsel failed to correct the driver's abstract record, there is sufficient credible
evidence in the record that the sentencing court's decision to suspend defendant's
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driving privileges for fifteen years did not rest on a particularized finding that
defendant had four – rather than two – prior DUI convictions. Importantly,
defendant's driving privileges were suspended pursuant to N.J.S.A. 2C:11-
5(b)(4), the reckless death by auto statute, and not pursuant to a subsequent DUI
where the number of prior DUIs would have been a controlling factor.
Defendant has not demonstrated the outcome would have been different had his
counsel corrected the record, as required by the second prong of Strickland. The
record contains ample support for the sentencing court's imposition of the
fifteen-year suspension, even with only two prior DUI convictions, and the PCR
court's denial of defendant's petition.
Affirmed.
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