NOT FOR PUBLICATION WITHOUT THE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-2860-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT T. TODD,
Defendant-Appellant.
___________________________
Submitted September 24, 2018 – Decided October 16, 2018
Before Judges Messano and Fasciale.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Indictment No.
14-05-0578.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lee March Grayson, Designated Counsel, on
the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
After the State rested its case at trial, defendant Robert T. Todd pled guilty
to the single count of a Burlington County indictment charging him with
burglary, N.J.S.A. 2C:18-2. The State agreed to dismiss two other open charges
against defendant. The trial judge, Philip E. Haines, indicated he would
sentence defendant, who was eligible for an extended term, to a five -year term
of imprisonment with an eighteen-month period of parole ineligibility, and left
open the possibility that defendant could move for a change of sentence pursuant
to Rule 3:21-10(b)(1) after completing the period of parole ineligibility. 1 Judge
Haines imposed sentence in accordance with his prior representation. We
affirmed defendant's sentence on appeal, which we heard on our Excessive
1
The plea was entered pursuant to Rule 3:9-3(c), which permits
[t]he court . . . [to] indicate to the prosecutor and
defense counsel . . . if no tentative agreement has been
reached and with the consent of both counsel, the
maximum sentence it would impose in the event the
defendant enters a plea of guilty, assuming . . . the
information in the presentence report at the time of
sentence is as has been represented to the court at the
time of the disclosure and supports its determination
that the interests of justice would be served thereby.
Rule 3:21-10(b)(1) permits a defendant to file a motion at any time to "chang[e]
a custodial sentence to permit entry . . . into a custodial or non-custodial
treatment or rehabilitation program for drug or alcohol abuse."
A-2860-16T3
2
Sentence Oral Argument calendar. State v. Todd, No. A-4155-14 (App. Div.
Sept. 28, 2015).
Defendant filed a timely petition for post-conviction relief (PCR) alleging
trial counsel provided ineffective assistance. In particular, defendant claimed
he rejected an earlier, more lenient plea offer because counsel misinformed
defendant that he was a viable candidate for Drug Court, even though defendant
was statutorily ineligible. Defendant also asserted that trial counsel failed to
preserve defendant's ability to appeal Judge Haines's pre-trial decision denying
defendant's motion to suppress statements made to law enforcement. See, e.g.,
State v. Knight, 183 N.J. 449, 470 (2005) ("Generally, a defendant who pleads
guilty is prohibited from raising, on appeal, the contention that the State violated
his constitutional rights prior to the plea." (citation omitted)). Judge Haines
ordered an evidentiary hearing on the PCR petition at which defendant and trial
counsel testified.
In a comprehensive written decision, Judge Haines meticulously reviewed
the transcripts of several pre-trial conferences held before Judge Jeanne T.
Covert, then presiding judge of the Criminal Division. He noted Judge Covert
advised defendant that it was unlikely his application to Drug Court would be
accepted given defendant's prior criminal history, and that he was eligible for an
A-2860-16T3
3
extended term of imprisonment if convicted. Judge Haines reviewed the
transcripts of defendant's guilty plea, noting defendant's acknowledgment under
oath of his satisfaction with counsel's services.
Regarding the testimony at the PCR hearing, Judge Haines determined
trial counsel was credible and gave his testimony "substantial weight." The
judge specifically found defendant "was not credible." Judge Haines concluded
defendant was aware he was eligible for an extended term of imprisonment, and
that the State would escalate its plea offer from the original offer of a three-year
term with one year of parole ineligibility as the case moved forward. The judge
also concluded that trial counsel told defendant he was ineligible for Drug Court
because of a prior conviction for aggravated assault, "but that [d]efendant was
insistent on applying for [D]rug [C]ourt in spite of that advice." Judge Haines
also found that defendant knew he was waiving his right to appeal when he pled
guilty.
Citing the two-prong test formulated in Strickland v. Washington, 466
U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987), Judge Haines concluded defendant failed to present a prima
facie case that trial counsel rendered deficient performance and denied the PCR
petition. This appeal followed.
A-2860-16T3
4
Before us, defendant reiterates his claim that trial counsel provided
ineffective assistance by misadvising him about his eligibility for Drug Court
and failing to preserve his right to appeal the denial of his motion to suppress
statements made to law enforcement. We reject these arguments for the reasons
expressed by Judge Haines, adding only the following.
To establish a viable claim of ineffective assistance of counsel, a
defendant must show "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105
N.J. at 52 (quoting Strickland, 466 U.S. at 687). Additionally, a defendant must
prove he suffered prejudice due to counsel's deficient performance. Strickland,
466 U.S. at 687. A defendant must show by a "reasonable probability" that the
deficient performance affected the outcome. Fritz, 105 N.J. at 58. "A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, 466
U.S. at 694; Fritz, 105 N.J. at 52). Most importantly, our "standard of review is
necessarily deferential to a PCR court's factual findings . . . . [W]e will uphold
the PCR court's findings that are supported by sufficient credible evidence in
the record." State v. Nash, 212 N.J. 518, 540 (2013) (citing State v. Harris, 181
N.J. 391, 415 (2004)).
A-2860-16T3
5
Here, sufficient credible evidence, including the transcripts of prior
proceedings, supported Judge Haines's findings. Defendant's arguments lack
sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).
Affirmed.
A-2860-16T3
6