STATE OF NEW JERSEY VS. MARKEL FOWLKES(08-12-2191, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2380-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARKEL FOWLKES, a/k/a
JOSH WILLIAMS,
Defendant-Appellant.
________________________________________________
Submitted November 1, 2017 – Decided November 15, 2017
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
08-12-2191.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Markel Fowlkes appeals from an order entered by the
Law Division on December 1, 2016, which denied his petition for
post-conviction relief (PCR). We affirm.
Defendant was charged with one count of second-degree
robbery, contrary to N.J.S.A. 2C:15-1. The trial court conducted
a hearing on February 7, 2011, and determined that defendant was
competent to stand trial.
On February 16, 2011, defendant pled guilty. The State agreed
to recommend a sentence of ten years of incarceration with an
eighty-five percent period of parole ineligibility, pursuant to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run
consecutively with a sentence defendant was already serving for
an unrelated crime. At the plea hearing, defendant admitted that
on April 12, 2008, he entered a hardware store in Jersey City,
demanded money from an attendant there, and shook and struck her,
causing injury.
During the hearing, the judge stated that he would impose an
eight-year sentence, with a NERA parole disqualifier, that would
run concurrently with his previously-imposed sentence. The judge
asked defendant if he understood the plea agreement, and defendant
replied, "Eight with eighty-five." When the court replied
affirmatively, defendant said, "Yes." Later on, after taking
defendant's testimony on the factual basis for the plea, the judge
asked whether defendant still wished to plead guilty. He replied,
"To eight, right?" Defendant confirmed that he wanted to take the
plea. The judge stated he was satisfied defendant pled guilty
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freely and voluntarily, understood what he was doing, waived his
rights, and understood the sentence that could be imposed.
Defendant's attorney then raised the issue of the concurrent
sentence, and defendant asked whether the thirty-one months he had
already served for the previous offense "don't count" towards the
new robbery sentence. Counsel told the judge, "I explained to him
that he will get gap time for [the prior sentence], no[t] jail
credit because he [cannot] get jail credit while serving a State
prison sentence." Defendant said, "It's concurrent, right?" The
judge replied, "[I]t'll be concurrent from now on."
Defendant also completed plea forms in which he indicated
that he understood he would be subject to the eighty-five percent
NERA parole disqualifier and a three-year term of parole
supervision. At the hearing, defendant confirmed that his attorney
had read the questions on the form to him, and that he understood
those questions. However, when asked whether he felt his attorney
had done "the best that she could for [him]," defendant answered,
"No."
On April 7, 2011, the court sentenced defendant in accordance
with its statement at the plea hearing. The court gave defendant
910 days of gap time credit. Defendant appealed from the judgment
of conviction dated April 8, 2011. The case was heard on our
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excessive sentence oral argument calendar. R. 2:9-11. We entered
an order dated April 17, 2012, affirming the sentence.
Thereafter, defendant filed a pro se petition for PCR,
alleging he was denied the effective assistance of counsel. Counsel
was appointed for defendant, and counsel filed an amended petition
and supporting certification. Defendant claimed his attorney was
ineffective because she told him he would be given jail credits
against his robbery sentence for the time he had already served
on his prior sentence.
Defendant stated that his attorney did not tell him he would
receive gap time credits instead of jail credits until shortly
before the plea hearing. Defendant said his attorney did not
adequately explain that this meant he would be required to serve
eighty-five percent of the robbery sentence. He also asserted that
his counsel was ineffective because she did not explain that he
would be subject to three years of parole supervision.
The PCR court granted defendant's request for an evidentiary
hearing and conducted the hearing on September 29, 2016.
Defendant's attorney testified that she had discussed the plea
forms with defendant prior to the plea hearing. She asked him each
question and circled the answers for him. The plea documents
included the forms dealing with NERA and parole supervision.
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Counsel stated that defendant had been "engaged" with her while
they reviewed the forms.
Defendant's attorney further testified that she told
defendant the plea would require him to complete eighty-five
percent of his sentence and she explained what parole supervision
would entail. Counsel also stated that she explained the
differences between jail credits and gap time credits, and told
defendant he would only be entitled to the latter.
Defense counsel advised defendant that nevertheless, a
sentence concurrent with the sentence he was already serving would
be "beneficial" to him. She stated that throughout her conversation
with defendant about the plea, she believed he understood what she
told him. When defendant asked questions, she tried to respond in
a manner so that he would understand the consequences he faced.
On December 1, 2016, the PCR judge denied defendant's petition
in a written opinion. The judge found that defendant had not
established a claim of ineffective assistance of counsel. The
judge stated that defendant had completed the forms for NERA cases,
indicating that he knew he would be required to serve eighty-five
percent of his sentence and would be subject to parole supervision.
The PCR judge noted that at the plea hearing, the trial judge
had reviewed those forms with defendant. The judge concluded that
there was "no evidence in the record to suggest" that counsel "did
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not review the nature and consequences [with defendant]," or that
the judge at the plea hearing "failed to ensure that [defendant]
understood the consequences of the plea."
In addition, the judge found that defendant's attorney spent
sufficient time explaining jail credits and gap time credits to
defendant. Finally, the judge found that because defendant was
sentenced to a concurrent eight-year term instead of the ten-year
consecutive sentence he potentially faced at trial, he had not
shown that he would not have pled guilty but for counsel's alleged
errors. The judge entered an order dated December 1, 2016, denying
PCR. This appeal followed.
On appeal, defendant argues that the PCR court improperly
denied his PCR petition. Defendant argues that his plea attorney
did not properly inform him that gap time credits would not reduce
the period of parole ineligibility that the court would impose for
his robbery conviction. He contends he did not understand how
concurrent sentences and gap time credits work, and that his plea
counsel did not explain these issues adequately. Defendant further
argues that his attorney did not explain that his plea included a
three-year period of parole supervision.
To succeed on his PCR claim of ineffective assistance of
counsel, a defendant must meet the test established by Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
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2d 674, 693 (1984), and adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987). Under Strickland, the defendant
must show that counsel's performance was deficient and, if it was,
that there was 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 694, 104 S. Ct.
at 2068, 80 L. Ed. 2d at 698.
Where, as here, the defendant claims he was denied the
effective assistance of counsel with regard to a guilty plea, the
defendant must establish that counsel's performance was not
"within the range of competence demanded of attorneys in criminal
cases." State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting
Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36
L. Ed. 2d 235, 243 (1973)). The defendant also must show "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." Id. at 457 (quoting Hill v. Lockhart, 474 U.S.
52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
The record supports the PCR's court's determination that
defendant failed to establish he was denied the effective
assistance of counsel with regard to his plea. As the judge
explained, the plea forms that defendant executed show that he was
aware he would have to serve at least eighty-five percent of his
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eight-year prison sentence and that he would be subject to a
mandatory three-year period of parole supervision after he
completed serving that sentence.
Moreover, at the plea hearing, defendant told the judge he
understood his sentence would be "[e]ight with eighty-five," and
he did not disagree when his attorney stated that she had told him
that he was not eligible for jail credits for days served on his
prior sentence. There is no evidence that defendant's attorney
failed to adequately explain the plea and its consequences to
defendant.
Furthermore, defendant has not shown the result of the
proceeding would have been different if he had refused to enter
the plea. As the PCR judge noted in her opinion, defendant was
facing a second-degree robbery charge, which carried a maximum
sentence of ten years. That sentence could have run consecutively
with the sentence defendant was then serving.
Defendant only offered his bare assertion that he would not
have pled guilty if he had known that he would not get jail credits
for the time he was serving on the other offense, or that he would
have had a three-year period of parole supervision after serving
the sentence on the robbery charge. The PCR judge noted that
defendant's claim was refuted by the plea form for NERA cases.
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Moreover, the PCR judge pointed out in her opinion that
defendant received a sentence from the court, which was more
favorable than the sentence the State had initially agreed to
recommend. As noted previously, the State had agreed to recommend
a ten-year prison sentence, with a NERA period of parole
ineligibility, consecutive to the sentence defendant was then
serving. As the judge observed, it was unlikely defendant would
have refused to plead guilty in view of the risk that he could be
found guilty and sentenced to a ten-year prison term, consecutive
to the sentence he was already serving.
We therefore conclude that there is sufficient credible
evidence in the record to support the PCR court's findings and its
determination that defendant had not shown he was denied the
effective assistance of counsel in connection with his guilty
plea.
Affirmed.
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