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NOT FOR PUBLICATION WITHOUT THE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

3 A-2380-16T3
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.

6 A-2380-16T3
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.

8 A-2380-16T3
 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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