STATE OF NEW JERSEY VS. CYNTHIA MYERS (09-12-3011, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4207-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CYNTHIA MYERS,
Defendant-Appellant.
______________________________
Submitted November 1, 2018 – Decided March 19, 2019
Before Judges Whipple and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 09-12-3011.
Cynthia Myers, appellant pro se.
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John J. Santoliquido, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Cynthia Myers appeals from the February 26, 2016 order of the
Law Division denying her second petition for post-conviction relief (PCR)
without an evidentiary hearing. We affirm.
I.
On October 8, 2009, Myers and a co-defendant devised a plan to rob John
Quann, Jr. They lured Quann from his home with the promise of sex and drove
with him to Camden County, where in the early morning hours of October 9,
2009, the two repeatedly struck him in the head and face with a hammer, and
strangled him with a scarf. After driving the injured Quann to a remote area of
Atlantic County, Myers and her co-defendant bound his hands behind his back,
and tied a shoelace around his neck to strangle him. The two stole Quann's
wallet and car, and fled, leaving their victim to die alone in the woods. Five
days later, a hunter discovered Quann's lifeless body. After being apprehended
with Quann's car, Myers and her co-defendant confessed to his murder.
An Atlantic County grand jury charged Myers with: first degree murder,
N.J.S.A. 2C:11-3(a)(1) and (2); first degree kidnapping, N.J.S.A. 2C:13-1(b);
first degree robbery, N.J.S.A. 2C:15-1; first degree felony murder while
attempting to commit robbery, N.J.S.A. 2C:11-3(a)(3); first degree felony
murder while attempting to commit kidnapping, N.J.S.A. 2C:11-3(a)(3); first
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degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-
3(a)(1) and (2); second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2
and N.J.S.A. 2C:15-1; second degree conspiracy to commit aggravated assault,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b); second degree aggravated assault,
N.J.S.A. 2C:12-1(b); third degree assault with a deadly weapon, N.J.S.A. 2C:12-
1(b)(2); and third degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4.
On January 27, 2010, pursuant to a negotiated agreement, defendant
entered a plea of guilty to first degree felony murder while attempting to commit
robbery, and second degree conspiracy to commit robbery. In accordance with
the plea agreement, the State dismissed the remaining charges and recommended
a thirty-eight-year term of imprisonment for felony murder, subject to an eighty-
five percent period of parole ineligibility pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, and a concurrent seven-year term for conspiracy
to commit robbery.
At the plea hearing, defendant stated that she was satisfied with the
agreement and with the representation provided by her counsel. She admitted
on the record to participating in the robbery and murder of Quann. During the
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hearing, the court and counsel referred to the agreed upon period of parole
ineligibility as thirty-two years and three months.
At the subsequent sentencing hearing, defendant interrupted her attorney
while he was addressing the court and announced she wanted to withdraw her
plea. Although defendant had previously submitted a letter to the court stating
that she wished to withdraw her plea, she had not provided a copy of the letter
to her counsel. Defendant's attorney informed the court that he was unaware of
her intention to seek withdrawal of her plea. The court granted counsel's request
to permit defendant to argue a motion to withdraw her plea on her own behalf.
Defendant argued that the factual basis for her plea did not support a conviction
for felony murder, but even if it did, the factual basis satisfied the elements for
an affirmative defense to the crime. The court denied the motion and sentenced
defendant in accordance with the plea agreement, imposing an aggregate thirty -
eight-year sentence with an eighty-five-percent period of parole ineligibility,
along with fines, penalties, and restitution.
Defendant appealed her sentence and the denial of her motion to withdraw
her plea. We affirmed defendant's sentence, State v. Myers, No. A-1539-10
(App. Div. June 29, 2011), and the denial of her motion, State v. Myers, No. A-
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01539-10 (App. Div. Aug. 2, 2011). The Supreme Court denied defendant's
petition for certification. State v. Myers, 209 N.J. 430 (2012).
On March 21, 2012, defendant filed her first petition for PCR. She argued
that she was denied effective assistance of counsel at trial because her attorney:
(1) did not advocate on her behalf on her motion to withdraw her guilty plea; (2)
had a conflict of interest arising from an ethics complaint defendant filed against
him; (3) failed to file a motion to suppress her statements to police; (4) failed to
request a restitution hearing to determine her ability to pay; and (5) failed to
contact several alibi witnesses. The trial court denied defendant's first PCR
petition without an evidentiary hearing. We affirmed. State v. Myers, No. A-
4391-12 (App. Div. Jan. 6, 2015). The Supreme Court denied defendant's
petition for certification. State v. Myers, 221 N.J. 492 (2015).
On June 7, 2015, defendant filed her second petition for PCR. She alleged
that she was denied effective assistance of counsel on her first PCR petition
because her counsel failed to argue that: (1) she had to argue her motion to
withdraw her guilty plea on her own behalf; and (2) her trial counsel
misinformed her as to the length of the parole ineligibility period to be
recommended by the State in exchange for her guilty plea by advising her that
the period was nineteen days shorter than it actually is.
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It appears that at the time of the plea agreement and sentencing, the parties
and the court calculated the agreed upon parole ineligibility period based on the
number of months in a thirty-eight-year sentence, but misinterpreted the result
of their calculation (38 years x 12 months = 456 months x .85 = 387.6
months ÷ 12 months = 32.3 years). The parties and court appeared to be under
the impression that 32.3 years equates to thirty-two years and three months.
However, 32.3 years equals thirty-two years and 3.6 months because .3 years is
3.6 months, not three months (12 months x .3 = 3.6 months). Six-tenths of a
month is nineteen days (31 days x .6 = 18.6 days). The correct period of
parole ineligibility imposed is thirty-two years, three months, and nineteen days.
On February 26, 2016, Judge Bernard E. DeLury, Jr., who presided at
defendant's plea and sentencing hearings, and decided her first PCR petition,
issued a comprehensive written opinion denying her second PCR petition
without an evidentiary hearing. Judge DeLury concluded that defendant's
argument that her trial counsel abandoned her when she sought to withdraw her
guilty plea had been considered and rejected on her direct appeal and in her first
PCR petition. As a result, the judge held that defendant is barred from raising
the argument for a third time by Rule 3:22-5.
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The court also concluded that defendant had not established a prima facie
case of ineffective assistance of counsel with respect to the advice she received
about the length of the parole ineligibility period. The court found that even if
defendant's first PCR counsel had raised the argument, defendant was unlikely
to have been afforded relief. Noting that defendant was facing likely conviction
and life imprisonment without the possibility of parole, the court concluded that
"there is no rational possibility that [defendant] would have rejected the plea
offer and proceeded to trial on account of an extra nineteen days imprisonment."
Thus, the court held, even though defendant's counsel advised her that the parole
ineligibility period was nineteen days shorter than it actually is, had the correct
advice been given, the outcome would not have changed. The court also found
that defendant repeatedly acknowledged in writing that she would serve eighty-
five percent of her sentence before being eligible for parole. In light of these
conclusions, the court found that an evidentiary hearing was not warranted. On
February 26, 2016, the judge entered an order denying defendant's second PCR
petition.
This appeal followed. On appeal, defendant raises the following
arguments for our consideration:
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POINT I
PETITIONER'S FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO EFFECTIVE
ASSISTANCE OF FIRST PCR COUNSEL AND DUE
PROCESS OF LAW WERE VIOLATED WHEN
COUNSEL FAILED TO RAISE THE ISSUE THAT
TRIAL COUNSEL MISINFORMED PETITIONER
AS TO THE PERIOD OF INCARCERATION SHE
WOULD FACE AND DID NOT CORRECT THE
COURT'S ERROR AND THE STATE'S ERROR IN
MISINFORMING HER OF THE INCARCERATION
CONSEQUENCES OF THE PLEA AND
THEREFORE SHE COULD NOT HAVE MADE A
VOLUNTARY AND KNOWING PLEA, AND
FURTHER FAILED TO RAISE INEFFECTIVE
ASSISTANCE OF DIRECT APPEAL COUNSEL FOR
NOT RAISING THE INCARCERATION
CONSEQUENCES ISSUE. (U.S. CONST. AMEND.
V, VI & XIV)
POINT II
THE DEFENDANT WAS DENIED HER RIGHT TO
THE EFFECTIVE ASSISTANCE OF FIRST POST
APPELLATE COUNSEL [SIC], THEREBY
DEPRIVING HER OF DUE PROCESS OF LAW AND
A FAIR TRIAL AS GUARANTEED BY THE SIXTH
AND FOURTEENTH AMENDMENT[S] OF THE
UNITED STATES CONSTITUTION AND ARTICLE
1, PARAGRAPH 10, OF THE NEW JERSEY
CONSTITUTION DUE TO THE FAILURE ON THE
PART OF FIRST POST APPELLATE COUNSEL
[SIC] TO RAISE OBVIOUS ISSUES OF TRIAL
ERROR.
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POINT III
PETITIONER HAS PRESENTED A PRIMA FACIE
CLAIM OF INEFFECTIVE ASSISTANCE OF FIRST
PCR COUNSEL AND SHOULD HAVE RECEIVED
AN EVIDENTIARY HEARING.
In her reply brief, defendant argues:
THE STATE'S SPURIOUS RESPONSE IS DEVOID
OF MERIT AND APPELLANT'S PLEA SHOULD BE
VACATED AND A NEW TRIAL GRANTED.
II.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance
of counsel, the defendant must meet the two-part test established by Strickland,
466 U.S. at 686, and adopted by our Supreme Court in Fritz, 105 N.J. at 58.
Under Strickland, a defendant first must show that his or her attorney
made errors "so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at
687. Counsel's performance is deficient if it "[falls] below an objective standard
of reasonableness." Id. at 688.
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A defendant also must show that counsel's "deficient performance
prejudiced the defense." Id. at 687. The defendant must establish that "there is
a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in the outcome"
of the proceeding. Ibid.The right to the effective assistance of counsel extends to legal assistance
related to the entry of a guilty plea. State v. Gaitan, 209 N.J. 339, 350-51 (2012).
To set aside a guilty plea based on ineffective assistance of counsel, the
"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.'" State v. Nunez-
Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)).
A defendant is entitled to an evidentiary hearing on a PCR petition if the
defendant presents a prima facie case in support of PCR, the court determines
there are material issues of fact that cannot be resolved based on the existing
record, and the court finds that an evidentiary hearing is required to resolve the
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claims presented. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354
(2013) (citing R. 3:22-10(b)).
Finally, Rule 3:22-5 provides that
[a] prior adjudication upon the merits of any ground for
relief is conclusive whether made in the proceedings
resulting in the conviction or in any post-conviction
proceeding brought pursuant to this rule or prior to the
adoption thereof, or in any appeal taken from such
proceedings.
The Supreme Court has held that
[p]reclusion of consideration of an argument presented
in post-conviction relief proceedings should be effected
only if the issue raised is identical or substantially
equivalent to that adjudicated previously on direct
appeal.
[State v. Marshall, 148 N.J. 89, 150 (1997) (quoting
State v. Bontempo, 170 N.J. Super. 220, 234 (Law Div.
1979)).]
Having carefully reviewed defendant's arguments in light of the record
and applicable legal principles, we affirm the February 26, 2016 order for the
reasons stated by Judge DeLury in his thorough and well-reasoned written
opinion. We add only the following comments.
We note that the nineteen days at issue here concern defendant's period of
parole ineligibility, not her term of incarceration. There is, of course, no
guarantee that defendant will be released on parole when she first becomes
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eligible. Defendant, therefore, mischaracterizes the parole ineligibility period
as the "maximum sentence" she would have agreed to in a plea agreement. In
fact, the maximum sentence defendant agreed to is thirty-eight years, which is
precisely the sentence she received.
Affirmed.
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