STATE OF NEW JERSEY VS. DANIEL DEHAVEN (11-06-0684, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1218-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL DEHAVEN,
Defendant-Appellant.
______________________________
Submitted November 5, 2018 – Decided November 14, 2018
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 11-06-0684.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (Erin Smith Wisloff, Supervising
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Daniel DeHaven appeals from the Law Division's August 2,
2017 order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
A Morris County grand jury charged defendant in thirteen counts of a
fourteen-count indictment with two counts of first-degree robbery, N.J.S.A.
2C:15-1(a) (counts one and two); second-degree robbery, N.J.S.A. 2C:15-
1(a)(2) (count three); third-degree theft, N.J.S.A. 2C:20-3(a) (count four); two
counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1(a) (counts five and nine); two counts of third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts
six and twelve); two counts of fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d) (counts seven and thirteen); second-degree attempted
robbery, N.J.S.A. 2C:5-1(a) and N.J.S.A. 2C:15-1(a) (count ten); third-degree
attempted theft, N.J.S.A. 2C:5-1(a) and N.J.S.A. 2C:20-3(a) (count eleven); and
second-degree distribution of a prescription legend drug, N.J.S.A. 2C:35-
10.5(a)(4) (count fourteen). 1
1
On November 18, 2010, defendant was arrested on these charges. At that time,
he was already incarcerated in the Union County jail on an unrelated charge.
A-1218-17T4
2
On March 2, 2012, defendant pled guilty to counts two, six, ten, and
fourteen.2 Defendant's sentencing exposure on just these four charges was fifty
years in prison, together with $380,000 in fines. However, in return for
defendant's plea, the State agreed to recommend the imposition of an aggregate
fifteen-year sentence, and the dismissal of the other charges. During the plea
colloquy, defendant testified he was satisfied with the services provided by his
attorney.
In accordance with the parties' agreement, the trial judge sentenced
defendant to fifteen years in prison on count two, subject to the 85% parole
ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, with a five-year period of parole supervision upon release; a concurrent
five-year term on count six; a concurrent ten-year term, subject to NERA, with
a three-year period of parole supervision on count ten; and a concurrent seven-
year term on count fourteen. Therefore, defendant received an aggregate fifteen-
year term as contemplated in his plea agreement.
According to defendant's pre-sentence report, at the time defendant was
sentenced on May 4, 2012, he had been in the Union County jail from November
2
Defendant also pled guilty to an unrelated charge set forth in a separate
indictment. That charge is not the subject of this appeal.
A-1218-17T4
3
15, 2010 through August 25, 2011, and had begun serving a State prison
sentence on a Sussex County charge on May 6, 2011. Defendant's attorney
discussed the issue of jail credits with the trial judge and the prosecutor at
sentencing. The parties agreed that defendant should receive both jail credits
and gap-time credits. In accordance with this agreement, the judge granted
defendant two days of jail credit from September 15, 2010 to September 16,
2010, and 536 days of gap-time credit from November 15, 2010 to May 3, 2012.
Defendant did not file a direct appeal. In October 2016, he filed a petition
for PCR. In a certification he submitted in support of the petition, defendant
alleged that his trial attorney provided ineffective assistance by incorrectly
advising him "that jail credits and gap[-time] credits were the same and that [he]
was entitled to 536 days of credits, which would be applied to the 'back end' of
[his] sentence." He also stated that his attorney "misled [him] about the credits
and [he] later learned that jail credits and gap[-time] credits are not applied the
same."
Significantly, defendant certified that he "d[id] not want to disturb [his]
plea and proceed to trial." (emphasis added). Instead, he asked "that the 536
days that [he] was awarded [be] changed to jail credits, rather than gap[-time]
credits."
A-1218-17T4
4
By way of background, Rule 3:21-8(a) provides that a "defendant shall
receive credit on the term of a custodial sentence for any time served in custody
in jail or in a state hospital between arrest and the imposition of a sentence."
Such credit for pre-sentence custody is commonly called "jail credits."
Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988). In State v. Hernandez,
208 N.J. 24, 48 (2011), the Court confirmed that Rule 3:21-8 means "exactly
what it states in plain language[.]" The Court held that a defendant is entitled
to credit on the term of a custodial sentence for the pre-sentence time period
spent in custody. Id. at 37. Jail credits are applied to the NERA or mandatory
minimum portion of a sentence. Id. at 38-39.
Here, however, defendant had multiple charges and multiple sentencing
dates. In Hernandez, the Court provided guidance on how credits should be
calculated "with respect to multiple charges." Id. at 50. The Court clarified that
"once the first sentence is imposed, a defendant awaiting imposition of another
sentence accrues no more jail credit under Rule 3:21-8." Ibid. Rather, the
defendant is only entitled to gap-time credit under N.J.S.A. 2C:44-5(b). Id. at
38. This credit is referred to as "gap-time credit" because "it awards a defendant
who is given two separate sentences on two different dates credit toward the
second sentence for the time spent in custody since he or she began serving the
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first sentence." Ibid. Gap-time credits are only applied after the defendant has
completed the NERA or mandatory minimum portion of his or her sentence.
In order to grant gap-time credit, rather than jail credit, the following three
facts must be found: "'(1) the defendant has been sentenced previously to a term
of imprisonment[;] (2) the defendant is sentenced subsequently to ano ther
term[;] and (3) both offenses occurred prior to the imposition of the first
sentence.'" Id. at 38 (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). If
these three facts are established, "the sentencing court is obligated to award gap -
time credits," rather than jail credits. Ibid.With these legal principles in mind, Judge Catherine Enright determined
that the sentencing court had incorrectly calculated the credits due defendant.
The judge found that defendant entered the Union County jail on November 15,
2010 for an offense in that county. He was charged with the Morris County
robberies involved in the indictment that is the subject of the present case on
November 18, 2010, and began accumulating jail credit on that indictment on
that date. On May 6, 2011, defendant was sentenced to three years in State
prison on yet another charge, this one arising out of Sussex County. Therefore,
defendant stopped receiving jail credits on that date. Thereafter, he was
A-1218-17T4
6
sentenced on the Union County charge on April 27, 2012, and sentenced in the
present matter in Morris County on May 4, 2012.
Accordingly, Judge Enright found that defendant was entitled to jail
credits for the 169-day period between November 18, 2010, the date of his arrest
on the Morris County charges, and May 5, 2011, the date he was first sentenced
on any of the pending charges. She awarded defendant gap-time credits for the
364-day period between May 6, 2011 to May 3, 2012, the day before he was
sentenced on the Morris County charges. Defendant's PCR attorney, who
assisted the judge and the prosecutor in correcting the mistake, agreed with this
calculation, and the judge ordered that an amended judgment of conviction be
issued to reflect the appropriate credits.
The attorney also confirmed that defendant "d[id] not want to disturb his
plea" and "d[id] not want to reopen this matter" by withdrawing his plea and
going to trial. Nevertheless, defendant continued to insist that all of his time in
custody should be treated as jail credits based upon his allegation that his plea
attorney had told him there was no difference between jail credits and gap-time
credits.
Judge Enright rejected this contention in her comprehensive written
decision. The judge concluded that defendant failed to satisfy the two-prong
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test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a
showing that the trial counsel's performance was deficient and that, but for the
deficient performance, the result would have been different.
With regard to the first prong, the judge found that defendant's contention
that his attorney provided him with incorrect information on the credits was not
supported by the record because the attorney addressed the issue with the
sentencing judge in defendant's presence and sought to ensure his client received
both jail credits and gap-time credits.
In addition, the judge noted that jail credits are "mandatory, not
discretionary." Hernandez, 208 N.J. at 37. Where gap-time credits are
applicable, a court has no discretion to award jail credits instead. Id. at 48-49.
The judge further explained that "any jail and gap[-]time credits could not be
negotiated as they are not discretionary in nature. Thus, [defendant] received
jail and gap[-]time credits based on the trial court's calculations of same, not
because of the quality of his former counsel's representation." Because
defendant did not want to withdraw his plea, Judge Enright found that defendant
failed to meet the second Strickland prong because he had now received all the
credits due him. This appeal followed.
A-1218-17T4
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On appeal, defendant again states that he does not wish to withdraw his
plea. He also agrees that his jail and gap-time credits were accurately calculated
by Judge Enright. However, he continues to assert that he "was denied effective
assistance of counsel when counsel affirmatively misinformed him that jail
credits and gap[-]time [credits] were applied equally to his sentence and this his
plea would essentially include the application of 536 days of jail credits." We
disagree.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he was denied the effective assistance of counsel." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant
evidentiary hearings and make a determination on the merits only if the
A-1218-17T4
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defendant has presented a prima facie claim of ineffective assistance. Preciose,
129 N.J. at 462.
We agree with Judge Enright that defendant did not satisfy either pron g
of the Strickland test. We affirm substantially for the reasons set forth in her
thorough written opinion. However, we add the following comments concerning
the second Strickland prong.
When ineffective assistance of counsel is alleged following a guilty plea,
the defendant proves the second part of the Strickland test by showing "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) (quoting State v. DiFrisco, 137 N.J. 434, 457
(1994)). Because defendant is unwilling to withdraw his guilty plea and proceed
to trial, he is unable to meet this requirement. This is so because a defendant's
collateral attack of a guilty plea on PCR implicitly assumes a desire to accept
the consequences of a successful application, i.e., a willingness to withdraw the
previous guilty plea and proceed to trial. As Justice Stevens observed in Padilla
v. Kentucky, 559 U.S. 356 (2010), the decision to withdraw a guilty plea can be
a weighty one:
The nature of relief secured by a successful collateral
challenge to a guilty plea – an opportunity to withdraw
A-1218-17T4
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the plea and proceed to trial – imposes its own
significant limiting principle: Those who collaterally
attack their guilty pleas lose the benefit of the bargain
obtained as a result of the plea. Thus, a different
calculus informs whether it is wise to challenge a guilty
plea in a habeas proceeding because, ultimately, the
challenge may result in a less favorable outcome for the
defendant, whereas a collateral challenge to a
conviction obtained after a jury trial has no similar
downside potential.
[Id. at 372-73.]
Judge Enright ensured that defendant received all the jail and gap-time
credits legally due him. He was not entitled to any more. Thus, if defendant's
plea counsel had actually provided defendant with incorrect information
concerning the application of credits, the only relief available to him on PCR
would be the withdrawal of his guilty plea. However, defendant insists that the
plea agreement remain in place. Because defendant does not want the only relief
available – vacation of the plea and restoration of the charges – he can certainly
not demonstrate that "but for counsel's unprofessional error[], the result of the
proceeding would have been different." State v. Pierre, 223 N.J. 560, 583 (2015)
(quoting Strickland, 466 U.S. at 694).
Affirmed.
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