STATE OF NEW JERSEY VS. BRANDON SMITH (14-05-0560 AND 14-05-0570, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3170-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRANDON SMITH,
Defendant-Appellant.
_______________________
Submitted May 11, 2020 – Decided June 1, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 14-05-
0560 and 14-05-0570.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Christopher L. C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Nancy Anne
Hulett, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Brandon Smith appeals from a January 10, 2019 order denying
his petition for post-conviction relief (PCR) after an evidentiary hearing. We
affirm.
On February 9, 2014, defendant, previously convicted for attempted
murder, entered a bar in Perth Amboy and pointed a gun at Edward Gonzalez.
Under Indictment No. 14-05-560, a grand jury charged defendant with fourth-
degree aggravated assault, N.J.S.A. 2C:12-l(b)(4) (count one), second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two), second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(count three), third-degree riot, N.J.S.A. 2C:33-1(a)(3)(count four), and fourth-
degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five). In a separate
indictment, No. 14-05-570, defendant was charged with second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b).
Pursuant to a negotiated agreement, defendant pled guilty to the second-
degree possession of a weapon for an unlawful purpose charge (count three of
Indictment No. 14-05-560) and the second-degree certain persons offense under
Indictment No. 14-05-570. In return, the State agreed to dismiss the remaining
charges and to recommend a five-year sentence with forty-two months of parole
ineligibility on the possession of a weapon for an unlawful purpose charge with
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a concurrent five-year sentence with sixty months of parole ineligibility on the
certain person charge, along with applicable fines and penalties. In addition, the
sentences were to run consecutively to the five-year sentence defendant was then
serving for a parole violation. At sentencing, the court considered the
aggravating and mitigating factors and sentenced defendant in accordance with
the plea agreement. All remaining counts in Indictment No. 14-05-560 were
dismissed.
Defendant did not appeal his conviction or sentence. Instead, he filed a
PCR petition in which he maintained that his trial counsel was ineffective for
misinforming him about the time he would effectively serve under the plea
agreement. According to defendant, although he understood that his aggregate
sentence under the plea agreement would run consecutive to that related to his
parole violation, he claimed he had already received a parole date for that
violation and his trial counsel incorrectly advised him that the parole date would
not be affected by his plea. Defendant further claimed that as a result of pleading
guilty to the weapons offenses, and contrary to his counsel's advice, his parole
release date was changed resulting in him serving the complete five-year
sentence. Defendant contended had his counsel advised him of this
consequence, he would not have pled guilty to the weapons charges.
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As explained by defendant's PCR counsel:
[Defendant was] aware that he had two pending
charges. He was also aware that the charges amounted
to a violation of his parole and that is why he had been
incarcerated. However, he believed that he would still
be eligible for parole. In fact, as stated in the
Defendant's supplemental certification, trial counsel
told him, specifically that his parole date "was not
going to change." Defendant understood that the two
charges were going to run consecutively to the parole
violation. But, he did not understand that his guilty plea
was going to have such a detrimental effect on the
parole violation sentence. This was not told to him.
In effect, Defendant was given a ten[-]year sentence,
not a five[-]year term. This was error. Reasonably
competent counsel should have explained to Mr. Smith
that his parole date was going to change. Competent
counsel should have told him that he would not get
paroled, but rather, because he entered these guilty
pleas, he was going to have to serve the entire five years
for the parole violation. Reasonably competent counsel
would have told Defendant he was actually getting a
ten[-]year sentence. Counsel should have told him he
would have to serve ten years before being released.
After considering defendant's and his appointed counsel's submissions
along with the oral arguments of the parties, the first PCR judge scheduled an
evidentiary hearing. Judge Michael A. Toto, who was the plea and sentencing
judge but not the initial PCR judge, conducted that hearing. Judge Toto took
testimony from defendant's trial counsel and defendant.
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Defendant's trial counsel testified that he had between five and ten
conversations with defendant in which they discussed the discovery produce d
by the State, the strength of the State's evidence against him, and a possible plea
deal. Counsel also recalled discussing the State's plea offer and the concepts of
concurrent and consecutive sentences. As to the effect of the plea on his parole
violation, counsel stated he advised defendant he would need to serve the five-
year aggregate sentence offered by the State consecutive to the time defendant
was currently serving for his parole violation. Counsel also testified that he was
unsuccessful in negotiating a plea that would include a sentence that was
concurrent to both his current charges and the sentence he was serving for his
parole violation and he communicated that fact to defendant.
Counsel also testified that although he did not have a specific recollection
regarding any inquiry defendant may have made regarding the effect of his plea
on his parole date, he stated that if defendant raised the issue, he would have
informed him that he could not predict his release date for his parole violation.
Counsel specifically stated that he would have told defendant "effectively, I
don't know when parole [is] going to parole you out. You've got the five year
term[,] you've got to do it and it could be up to the five years." Defendant's
counsel also testified that defendant, prior to entering his plea "manifested an
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understanding that whatever happens [before] the parole board is beyond
[counsel's] control."
Defendant's counsel also confirmed that the charges in the two indictments
exposed defendant to multiple second-degree weapons charges and an extended
term sentence. Accordingly, had defendant rejected the plea and was convicted
at trial, he would have been exposed to a significantly longer period of
incarceration, which also would have run consecutive to his parole violation
sentence. Finally, counsel explained that the State's proofs against defendant
were considerable. Indeed, the State's proofs included the fact that defendant, a
convicted felon, pointed his gun at the victim in a public location. Defendant's
actions were witnessed by numerous individuals and were recorded by a
surveillance video. Defendant also confessed to police shortly after his arrest in
a recorded statement.
Defendant's counsel also explained certain discrepancies on defendant's
plea form. Specifically, counsel stated that the question asking if defendant was
on parole was incorrectly circled "no." A separate question on the form,
however, which asked if defendant was aware his sentence could run
consecutive to his current sentence was answered in the affirmative.
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Counsel also testified that he discussed defendant's parole status with him
and noted that Judge Toto specifically raised the issue with defendant during the
plea hearing, during which defendant acknowledged he was serving a five-year
sentence for a parole violation. In this regard, Judge Toto explicitly informed
defendant he would commence serving the sentence pursuant to the plea after
he completed his sentence for the parole violation.
Defendant testified that when he conferred with his counsel, they
discussed the plea offer which he described as "five with a five offer
consecutive." Defendant stated he understood the difference between a
consecutive and concurrent sentence and that the plea agreement included both
a concurrent and consecutive sentence such that he would serve his current
sentence after he completed serving his sentence for the parole violation.
Defendant stated that at the time he pled guilty, he had already appeared before
the parole board and "was given a twenty-nine-month hit which would have
made [him eligible to] get parole in July 2017." According to defendant, his
counsel advised him that if "[he] took the [plea] it wouldn't affect my parole
date." Defendant stated that he took the plea, hoping "that he would get eight
years." He admitted on cross-examination, however, that his counsel also
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advised him that he could serve ten years and that discussion took place prior to
his plea.
Judge Toto rendered a written opinion and concluded that defendant failed
to satisfy either prong of the two-part test for ineffective assistance of counsel
detailed in Strickland v. Washington, 466 U.S. 688 (1984) and adopted by the
New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). With respect
to prong one, Judge Toto, after having the opportunity to assess the credibility
of defendant and his trial counsel, found that defendant understood the terms of
the plea agreement and failed to establish that his trial counsel misadvised him
regarding the penal consequences of the plea and that the plea would not affect
his parole violation conviction resulting in defendant serving a sentence less
than ten years.
More specifically, Judge Toto determined that defendant's trial counsel
discussed the plea offer with him and its ramifications. In this regard, he noted
that defendant conceded during the evidentiary hearing that he was aware that
the combined sentence could total ten years, he had knowledge that the two
pending charges amounted to a parole violation, and the court informed him that
those charges would run concurrently, but would be consecutive to the parole
violation.
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Judge Toto also relied upon his colloquy with defendant at the plea
hearing where defendant referenced he was "going to do a five-year term" with
respect to the parole violation.1 He emphasized that the plea colloquy indicated
defendant could not make a prima facie showing of ineffective assistance as
1
The relevant plea colloquy between the court and defendant during the plea
hearing is as follows:
Q. . . . . What sentence are you serving now?
A. Five years parole violation.
Q. Okay. So, . . .you're going to do a five-year term?
A. Yes.
Q. . . . you understand that once you complete that
term, whenever it is, then this sentence is going to start?
You understand that, right?
A. Yes.
Q. Okay. And on this sentence you're looking at
basically a five with a five, right?
A. Yes.
Q. Okay. And that means you have to serve all five of
those years before you're eligible for parole. You
understand that?
A. Yes.
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defendant had ample opportunity to raise his concerns regarding parole
eligibility, how his guilty plea might affect his parole date, or when his parole
violation sentence would begin.
Finally, Judge Toto found that defendant's claim that his attorney's
misadvice prevented him from fairly evaluating his plea offer also failed for
similar reasons. Relying again on the plea colloquy, he reemphasized that
defendant understood his plea offer and sentence, and he discussed his
sentencing exposure with counsel, but defendant failed to raise any of these
issues during the plea hearing despite having an opportunity to do so.
On appeal, defendant limits his argument to the following single
contention:
POINT I
[DEFENDANT] IS ENTITLED TO RELIEF ON HIS
CLAIM THAT HIS ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY
MISADVISING HIM ABOUT HIS SENTENCE.
We find no merit to defendant's argument and affirm substantially for the
reasons stated by Judge Toto in his eleven-page written decision of January 10,
2019. R. 2:11-3(e)(2). We provide the following comments to amplify the
court's reasoning.
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Our review of an order granting or denying PCR involves consideration
of mixed questions of fact and law. State v. Harris, 181 N.J. 391, 415-16 (2004).
After a court has held an evidentiary hearing, we defer "to a PCR court's factual
findings based on its review of live witness testimony" and will uphold findings
that are "supported by sufficient credible evidence in the record." State v. Nash,
212 N.J. 518, 540 (2013). However, "we need not defer to a PCR court's
interpretation of the law," which we review de novo. Id. at 540-41.
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must show: (1) counsel's performance was deficient; and (2) the
deficiency prejudiced the defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J.
at 58. The Strickland test applies to challenges to guilty pleas. Hill v. Lockhart,
474 U.S. 52, 58 (1985). A defendant must establish that his attorney failed to
provide advice that "was within the range of competence demanded of attorneys
in criminal cases." Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)). A defendant also must show "there is a reasonable probability that, but
for counsel's errors, he would not have pleaded guilty and would have insisted
on going to trial." Id. at 59. Further, as our Supreme Court recently explained
in State v. McNeal, 237 N.J. 494 (2018), "[a] defendant has the right not to be
'misinformed' about a material element of a plea agreement and to have his or
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her 'reasonable expectations' fulfilled." Id. at 499 (citing State v. Bellamy, 178
N.J. 127, 134 (2003) (other citations omitted)).
The record from the evidentiary hearing amply supports Judge Toto's
finding that defendant entered his plea voluntarily and with a full understanding
of its penal consequences and his counsel did not misadvise him. Judge Toto
clearly informed defendant that the recommended sentence was an aggregate
five-year term with an attendant five-year period of parole ineligibility that
would be consecutive to the parole violation he was serving. After having an
opportunity to evaluate the testimony of defendant and his trial counsel who the
court deemed credible, Judge Toto concluded that trial counsel did not promise
that defendant would serve a term less than ten years and, in this regard,
defendant confirmed that counsel advised him he could serve ten years. As these
factual and credibility findings were amply supported by substantial evidence
elicited at the evidentiary hearing, they warrant our deference. See Nash, 212
N.J. at 540 (2013).
Further, as Judge Toto concluded, defendant failed to establish that he was
prejudiced by counsel's alleged misadvice. There was substantial evidence of
defendant's guilt and, had defendant proceeded to trial and was convicted, he
faced an extended term sentence. Defendant also received the benefit of
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dismissal of numerous other charges in Indictment 14-05-560 and received a
concurrent rather than a consecutive sentence.
In sum, we agree with Judge Toto that defendant failed to establish that
the alleged deficiencies of his trial counsel met either the performance or
prejudice prong of the Strickland/Fritz test.
Affirmed.
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