NOT FOR PUBLICATION WITHOUT THE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-4134-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARKUS BROWN,
Defendant-Appellant.
___________________________
Submitted June 7, 2018 – Decided June 25, 2018
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Indictment No.
12-07-0296.
Joseph E. Krakora, Public Defender, attorney
for appellant (William P. Welaj, Designated
Counsel, on the brief).
Francis A. Koch, Sussex County Prosecutor,
attorney for respondent (Shaina Brenner,
Assistant Prosecutor, of counsel and on the
brief; Sally Anne Monkemeier, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Markus Brown appeals from the April 12, 2017 Law
Division order, which denied his petition for post-conviction
relief (PCR) without an evidentiary hearing. On appeal, defendant
raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR [PCR]
WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL
COUNSEL, RESULTING IN A GUILTY
PLEA WHICH HAD NOT BEEN FREELY,
KNOWINGLY AND VOLUNTARILY
ENTERED.
POINT II: THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR [PCR]
SINCE HE FAILED TO RECEIVE
ADEQUATE LEGAL REPRESENTATION
FROM TRIAL COUNSEL AT SENTENCING.
We affirm the denial of defendant's PCR petition, but remand for
resentencing to correct an illegal sentence.
A Sussex County grand jury indicted defendant for first-
degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); second-degree
burglary, N.J.S.A. 2C:18-2(b)(2) (count two); second-degree
certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count
three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2)
(count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(4) (count six); second-degree possession of a firearm for an
2 A-4134-16T3
unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count seven); second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)
(count eight); and third-degree theft by unlawful taking, N.J.S.A.
2C:20-3 (count nine).
On January 29, 2014, defendant pled guilty to count one
(robbery) and count three (certain persons not to have weapons)
in exchange for the State's agreement to recommend a fifteen-year
term of imprisonment 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. The sentences would run concurrently to each other and
concurrent to any sentence imposed in Essex County. The plea form
stated that the court "will sentence" defendant to a twelve-year
term with the terms for each count running concurrently.
At the plea hearing, defendant admitted he committed the two
offenses. He acknowledged he had sufficient time to confer with
plea counsel; plea counsel reviewed the counts in the indictment
with him and explained the crimes of robbery and certain persons
not to have weapons and the application of the Graves Act and he
understood what the charges meant. Defendant acknowledged that
plea counsel reviewed discovery, potential defenses, the strengths
and weakness of any such defenses, and the plea form with him and
he voluntarily initialed and signed the plea form. Defendant
3 A-4134-16T3
acknowledged he faced a maximum thirty-year term of imprisonment
if convicted of the two charges.
Defendant also acknowledged he understood the terms of the
plea agreement and that the State would be requesting a fifteen-
year term of imprisonment and the sentences on each charge would
run concurrent. The court specifically questioned defendant about
his understanding of the terms of the plea agreement as follows:
THE COURT: And do you understand at your
sentencing, the State wishes
to recommend that you be
sentenced to a total of
[fifteen] years of
incarceration that would run
concurrent for these charges
and [NERA] would be
applicable? Is that clear to
you?
DEFENDANT: Yes.
THE COURT: The State also is indicating
that if you become the subject
of a conviction in Essex County
on an unrelated matter, that
the sentence of incarceration
here would run concurrent to
that sentence?
DEFENDANT: Yes.
THE COURT: In order for that to happen
though, that would have to mean
that the sentence to be imposed
here would come after the
sentence that would be imposed
in Essex County. Is that
clear?
4 A-4134-16T3
DEFENDANT: Yes.
THE COURT: If you are sentenced here
first, then with regard to
those charges in Essex County,
you would have . . . to,
through your lawyer, make the
request that any sentence to be
imposed there run concurrent
to this sentence. Is that
clear to you?
DEFENDANT: Yes.
THE COURT: And do you understand, as I
have been told, that in a prior
conference with another judge,
that it was indicated that your
exposure would be [twelve]
years of incarceration subject
to the [NERA]?
DEFENDANT: Yes, that's my understanding.
THE COURT: All right. With all of these
under – and by the way, I've
been describing to you this
period of parole eligibility,
do you understand that that
means that is a period of
incarceration that cannot be
reduced by good time, work time
or minimum custody credits?
DEFENDANT: Yes.
THE COURT: With these understandings
then, do you know how you wish
to plead to [c]ounts [one] and
[three] of this indictment?
DEFENDANT: Yes.
THE COURT: And how do you wish to plead?
5 A-4134-16T3
DEFENDANT: Guilty.
The colloquy continued as follows:
THE COURT: Is anyone forcing you to [plead
guilty]?
DEFENDANT: No.
THE COURT: Do you feel you've had an
adequate time to think through
that decision and confer with
your lawyer?
DEFENDANT: Yes I have.
. . . .
THE COURT: Now has anyone pressured or
threatened you to cause you to
plead guilty?
DEFENDANT: No Sir.
THE COURT: Has anyone made any other
promises to you other than what
I've covered with you to cause
you to plead guilty?
DEFENDANT: No.
THE COURT: No one's induced you to plead
guilty, have they?
DEFENDANT: No.
. . . .
THE COURT: Up to this point, do you have
any questions of me or of [plea
counsel]?
DEFENDANT: No, your Honor.
6 A-4134-16T3
THE COURT: And has your attorney answered
to your satisfaction, any
questions you may have asked
him?
DEFENDANT: Yes he has.
THE COURT: And are you satisfied with his
professional legal services?
DEFENDANT: Yes I am.
Represented by a different attorney, on June 27, 2014,
defendant appeared for sentencing. Sentencing counsel noted
several mitigating factors, including that defendant was twenty-
seven years old, employed, had a minor son, had one prior
conviction and no acts of violence, was remorseful, took full
responsibility for his actions, and admitted his role in the crimes
at the time of his arrest. Counsel argued that mitigating factor
seven1 applied based on defendant's prior minimal record. In his
allocution, defendant took full responsibility for his actions and
stated he believed he deserved a twelve-year sentence rather than
fifteen years.
1
"The defendant has no history of prior delinquency or criminal
activity or has led a law-abiding life for a substantial period
of time before the commission of the present offense[.]" N.J.S.A.
2C:44-1(b)(7).
7 A-4134-16T3
The court found aggravating factors three and nine2 and
mitigating factor three.3 The court also referenced defendant's
remorse, the admissions he made at the time of his arrest, and the
effect of NERA. The court sentenced defendant on the robbery
count to a twelve-year term of imprisonment subject to NERA, and
a concurrent twelve-year term on the certain persons count subject
to NERA, with the sentences to run concurrent to any pending
charges in Essex County.
Defendant did not appeal his sentence. Instead, he filed a
PCR petition, arguing plea counsel misadvised him that the certain
persons offense required a mandatory consecutive sentence and
could not be concurrent with the robbery offense, and he would
receive a seven-year sentence on the robbery count subject to NERA
and a concurrent five-year sentence on the certain persons not to
have weapons count. Defendant also argued that sentencing counsel
rendered ineffective assistance by not arguing for certain
mitigating factors.
In an oral opinion, the PCR judge denied the petition without
an evidentiary hearing. The judge found the petition was
2
"The risk that the defendant will commit another offense[,]"
N.J.S.A. 2C:44-1(a)(3); "[t]he need for deterring the defendant
and others from violating the law[,]" N.J.S.A. 2C:44-1(a)(9).
3
"The defendant acted under a strong provocation[.]" N.J.S.A.
2C:44-1(b)(3).
8 A-4134-16T3
procedurally barred by Rule 3:22-3 and Rule 3:22-4, as defendant
could and should have raised his sentencing argument in a direct
appeal.
Addressing the merits, the PCR judge found defendant failed
to establish a prima facie case of ineffective assistance of plea
and sentencing counsel. The judge determined the the plea
transcript confirmed defendant understood, and was not misadvised
about, the terms of the plea agreement and did not object to it.
The judge also found defendant did not object at sentencing and
the record supported the aggravating and mitigating factors. This
appeal followed.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. 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 defendant has presented a prima facie claim of
ineffective assistance of counsel, material issues of disputed
fact lie outside the record, and resolution of those issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.
343, 355 (2013). To establish a prima facie claim of ineffective
assistance of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors "so
serious that counsel was not 'functioning' as
9 A-4134-16T3
the counsel guaranteed the defendant by the
Sixth Amendment." An attorney's
representation is deficient when it "[falls]
below an objective standard of
reasonableness."
Second, a defendant "must show that the
deficient performance prejudiced the
defense." A defendant will be prejudiced when
counsel's errors are sufficiently serious to
deny him "a fair trial." The prejudice
standard is met if there is "a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different." A
"reasonable probability" simply means a
"probability sufficient to undermine
confidence in the outcome" of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(alteration in original) (citations
omitted).]
To set aside a guilty plea based on ineffective assistance
of counsel, "a defendant must show that (i) counsel's assistance
was not 'within the range of competence demanded of attorneys in
criminal cases;' and (ii) 'that 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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original)
(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). We review
a judge's decision to deny a PCR petition without an evidentiary
hearing for abuse of discretion. See R. 3:22-10; State v.
Preciose, 129 N.J. 451, 462 (1992).
10 A-4134-16T3
We have considered defendant's arguments in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
the PCR judge expressed in his oral opinion. We conclude that
defendant failed to show that plea counsel rendered ineffective
assistance. The record confirms defendant was not misadvised
about the terms of the plea agreement and fully understood the
terms and agreed to them. He was advised the State recommended a
fifteen-year term of imprisonment subject to NERA to run
concurrent. The record does not support defendant's claim that
plea counsel advised he would receive a seven-year sentence on the
robbery count subject to NERA and a concurrent five years on the
certain persons count.
Defendant also failed to show that sentencing counsel
rendered ineffective assistance. Counsel adequately addressed
aggravating and mitigating factors and successfully argued for a
twelve-year sentence rather than the fifteen-year sentence the
State recommended. The record does not support a lower sentence.
Accordingly, we affirm the denial of defendant's PCR petition.
Defendant asserts, and the State concedes, that his twelve-
year sentence on count three is illegal because he could not have
been sentenced to more than ten years on a second-degree offense.
11 A-4134-16T3
Thus, we remand for the limited purpose amending the judgment of
conviction to reflect a sentence not to exceed ten years on count
three.
The denial of defendant's PCR petition is affirmed. This
matter is remanded to the trial court to correct the judgment of
conviction in accordance with this opinion.
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