STATE OF NEW JERSEY VS. JOSHUA Q. ROBINSON (11-02-0303, 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NOT FOR PUBLICATION WITHOUT THE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-1135-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSHUA Q. ROBINSON,

Defendant-Appellant.

________________________________

Submitted October 25, 2017 – Decided November 13, 2017

Before Judges Alvarez and Nugent.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-02-0303.

Joseph E. Krakora, Public Defender, attorney
for appellant (Janet A. Allegro, Designated
Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the briefs).

PER CURIAM

Defendant appeals from an August 25, 2016 order denying

without an evidentiary hearing his petition for post-conviction

relief (PCR). He argues the following points on appeal:
 POINT I THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION
THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL
REPRESENTATION.

(A) THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS
OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF
EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION
RELIEF.

1. TRIAL COUNSEL'S MISREPRESENTATION REGARDING
WHETHER DEFENDANT WOULD RECEIVE JAIL CREDIT OR GAP
TIME CREDIT RESULTING IN DEFENDANT'S INVOLUNTARY
GUILTY PLEAS CONSTITUTED INEFFECTIVE ASSISTANCE OF
COUNSEL.

POINT II THE PCR COURT ERRED IN DENYING DEFENDANT'S PLEA
WITHDRAWAL.

1. TRIAL COUNSEL'S INCORRECT ADVICE REGARDING GAP
TIME AND JAIL TIME CREDIT RESULTED IN DEFENDANT'S
INVOLUNTARY GUILTY PLEA.

2. THE COURT ERRED IN FINDING THAT [DEFENDANT]
DID NOT SATISFY THE FOUR FACTORS OF STATE V. SLATER,
198 N.J. 145 (2009).

We affirm.

A Hudson County grand jury charged defendant and three co-

defendants in a multi-count indictment with first-degree murder

and other offenses. Defendant accepted a plea offer and pleaded

guilty to an amended charge of second-degree manslaughter,

N.J.S.A. 2C:11-4(b)(2).

During the plea proceeding, while summarizing the plea

agreement, the prosecutor informed the court:

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 The State will be recommending a sentence of
ten years. The [eighty-five] percent No Early
Release Act would apply. The three year
period of parole would apply. [Defendant] has
a prior Graves Act conviction involving an
aggravated assault involving a gun. So it's
a mandatory Graves Act extended on this case.

We're asking that this sentence be
consecutive to the Federal sentence he is
currently serving. He received 188 months on
that sentence. . . . [H]e was sentenced on
November 28th, 2012. So from the State's
position he's entitled to direct jail time
credit to that date. It would be gap time
credit from that date forward.

The court responded: "Okay. So, if I'm clear, from the date

of his arrest until November 28, 2012, jail credit, and from

November 28, 2012, henceforth, is gap time credit?" The prosecutor

replied, "[t]hat's correct."

Defense counsel, in defendant's presence, informed the court

the prosecutor's recitation of the plea agreement was correct.

Defense counsel also informed the court that at the time of

sentencing, "we will put forth arguments for a . . . concurrent

sentence, . . . and for total credit for the whole four years as

[defendant has] been in [county jail] that whole time."

The court asked defendant to provide a factual basis for the

plea. Defendant admitted that on June 5, 2010, in Jersey City,

he went to the waterfront area where he shot the victim. He

claimed to do so under provocation, namely, that the victim pulled

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out a gun. Defendant stipulated through counsel he shot the victim

in the abdomen. The medical examiner found the abdomen wound to

be a contributory cause of death. The other cause was by drowning,

but according to the stipulation, that occurred at the hands of

others.

In response to the court's questions, defendant acknowledged

he had the opportunity to "exit the area" without shooting the

victim, but defendant chose to shoot the victim rather than to

flee. Defendant also said he understood the prosecutor would

recommend a ten-year prison term, of which defendant would have

to serve eight and one-half before being considered for parole.

Lastly, defendant acknowledged he would be required to undergo

three years of parole supervision upon his release from jail, and

that if he violated parole supervision, he would return to jail

for the entire three years.

The court explained the State was recommending the sentence

be served consecutively to defendant's federal sentence and that

defense counsel would ask for the sentence to be served

concurrently. The court also explained it would make the decision

to impose either a concurrent or consecutive sentence at the time

of sentencing, not before. Defendant said he understood. When

the court asked if defendant had any questions for either his

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counsel or the court, defendant responded: "No. On sentence day

I'll ask."

Lastly, the court asked if defendant understood it would

be very difficult to change [his] mind and
take [his] guilty plea back, because [the
court is] likely to believe what [defendant]
just told [the court] that [defendant] shot
this individual and . . . didn't have to,
[defendant] could have fled, even though [he
was] provoked, which shows [the court he's]
guilty, . . . rather than . . . something
[defendant] later [says] trying to take it
back.

Defendant said he understood. The court then informed defendant

that once the court imposed the sentence, it would be even harder

for defendant to change his mind and take his plea back. Defendant

again said he understood.

When defendant was sentenced, his attorney argued that he

should receive jail credits for the entire time he was in jail

before being sentenced, including the time he spent in jail after

imposition of the federal sentence. Counsel claimed defendant had

not posted bail on the Hudson County indictment, was returned to

Hudson County jail after being sentenced on the federal charges,

and remained in the Hudson County jail until appearing before the

court for sentencing on the Hudson County charge. Defendant did

not dispute at sentencing, and does not dispute on appeal, that

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he was not entitled to jail credits once he began serving his

federal sentence.

The trial court sentenced defendant in accordance with the

plea agreement to ten years with eight and one-half years of parole

ineligibility and a three-year term of parole supervision. The

court ordered defendant to serve the sentence consecutively to the

federal sentence.

One year and three months after the court sentenced defendant,

defendant filed a PCR petition. Defendant asserted five points

in his petition: (1) there was a "questionable factual basis" for

his plea; (2) the trial court erroneously considered a companion

case during sentencing; (3) the court committed error by requiring

that petitioner had to flee to support passion-provocation; (4)

defense counsel "labored under a conflict of interest"; and (5)

defense counsel "failed to appear and sent a representative who

was not prepared to vigorously champion petitioner's cause."

Thereafter, defendant filed an amended verified petition in

which he made two additional arguments: his attorneys were

ineffective for misrepresenting the amount of jail credits he

would receive upon sentencing, and his attorneys were also

ineffective for telling him he could not withdraw his guilty plea.

He claimed that if he knew he would not receive 604 days of jail

credit for the time between the sentencing on the federal charges

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and the sentencing on the State manslaughter charge, he would not

have pleaded guilty. He also claimed that had he known he could

have filed a motion to withdraw his guilty plea, he would have

done so. Defendant asserted his innocence, claimed he acted in

self-defense, and maintained that his actions were not the cause

of the victim's death. His counsel filed a supporting brief.

Following oral argument, the Honorable Joseph V. Isabella

denied defendant's petition without an evidentiary hearing. In a

comprehensive written opinion, after reviewing applicable

precedent, Judge Isabella addressed each of defendant's arguments.

Addressing defendant's claim concerning jail credits on the

federal charges, Judge Isabella pointed out that nothing in the

record supported defendant's claim. To the contrary, the plea

forms reflected the State would recommend gap time credits after

defendant was sentenced on November 28, 2012. Judge Isabella, who

had presided over the plea and sentencing proceedings, noted he

had asked, and defendant had acknowledged, that the plea forms

were correct. Defendant further acknowledged counsel had

explained each question to him, defendant understood them, and

that no one had promised him anything that was not in the plea

forms.

Judge Isabella also noted that at the outset of defendant's

plea proceeding, the State, among other things, said defendant was

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only entitled to gap time credits following his federal sentence.

After the prosecutor spoke, the court reiterated the State's

position that defendant would receive gap time credit for time

spent in jail following his federal sentence on November 28, 2012,

before imposition of his sentence on the State manslaughter

offense. Judge Isabella concluded that in light of defendant's

plea form and the colloquy concerning gap time credits during the

plea proceedings, defendant's bald allegation his attorney

promised him gap time credits had no factual basis.

Similarly, Judge Isabella determined defendant's bald

assertion that his attorney told him he could not withdraw his

plea was unsupported by anything in the record. The judge

explained that before accepting the plea, he assured himself

defendant knowingly and voluntarily pleaded guilty. Moreover, the

judge had advised defendant that if defendant pleaded guilty, it

would be difficult to withdraw the plea and would be even more

difficult once defendant was sentenced. Defendant never inquired

about withdrawing his plea either before or during the sentencing

proceeding. Nonetheless, Judge Isabella analyzed the criteria set

forth in State v. Slater, 198 N.J. 145, 157-58 (2009). Based on

the Slater criteria, Judge Isabella denied defendant's argument

that he should be permitted to withdraw his plea.

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 We affirm, substantially for the reasons expressed by Judge

Isabella in his August 25, 2016 written opinion. Defendant's

arguments are without sufficient merit to warrant further

discussion. R. 2:11-3(e)(2).

Affirmed.

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