Kenneth Vercammen Law Office.732-572-0500. Edison, NJ.
November 9, 2015
Leaving courthouse before VOP heard not automatically bail jumping State v Alexander
Leaving courthouse before VOP heard not automatically bail jumping State v Alexander
STATE OF NEW JERSEY,
MARK DENNIS ALEXANDER,
October 9, 2015
Submitted September 22, 2015 – Decided
Before Judges Yannotti and St. John.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-11-1712 and 10-04-0577.
Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3144-13T4
Defendant Mark Alexander appeals from an order entered by the Law Division on June 17, 2013, which denied his petition for post-conviction relief ("PCR"). We reverse.
Defendant was charged under Middlesex County Indictment No. 06-11-1712, with third-degree possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A.2C:35-5b(5) (count two); and second-degree possession of a CDS with intent to distribute on or near a public park, N.J.S.A. 2C:35-7.1 (count three).
On January 25, 2007, defendant pled guilty to count two of the indictment, and the State agreed to dismiss the other charges. On March 30, 2007, the court sentenced defendant to three years of probation, subject to special conditions. Defendant was required to report to his probation officer as directed; attend counseling; and submit to alcohol and drug testing.
Thereafter, defendant was charged with a Violation of Probation ("VOP"). On August 7, 2009, defendant pled guilty to VOP. He acknowledged that he failed to report to his probation officer as directed on four dates; had been discharged from counseling, although he was later readmitted to the program and completed counseling; and tested positive for cocaine on three dates. The court terminated probation and sentenced defendant to four years of imprisonment.
On October 9, 2009, the court granted defendant's motion for a change of custody, and on October 26, 2009, the court re-sentenced defendant to five years of probation, on the condition that he attend and complete the inpatient drug treatment program.
Defendant did not complete the program, and he was charged with VOP. The hearing on the VOP was scheduled for March 12, 2010. On that date, defendant appeared but left the courthouse without permission before his case was heard. Defendant was charged under Middlesex County Indictment No. 10-04-0577, under N.J.S.A. 2C:29-7.
On October 1, 2010, defendant pled guilty to VOP under Indictment No. 06-11-1712, and to bail jumping, under Indictment No. 10-04-0577. On November 19, 2010, the court sentenced defendant to a three-year custodial term on Indictment No. 06-11-1712, with a consecutive three-year term for the N.J.S.A. 2C:29-7 violation under Indictment No. 10-04-0577.
Defendant did not file a direct appeal. On May 24, 2012, defendant filed a pro se petition for PCR, alleging he had been denied the effective assistance of counsel because his attorney did not file a motion to dismiss the indictment on the ground that his action in leaving the court before the VOP was heard did not constitute a violation ofN.J.S.A. 2C:29-7; and because his attorney allowed him to plead guilty to a charge of which he was not guilty. The court appointed counsel and considered the petition on June 11, 2013.
After hearing oral argument by defendant's attorney and the assistant prosecutor, the PCR judge placed his decision on the record. The judge stated that the exception in N.J.S.A. 2C:29-7 for "obligations to appear incident to release under suspended sentence or on probation or parole" was "a little vague" and "should have been much [clearer]." The judge found that the exception only applied when an individual fails to appear before a probation officer.
The judge therefore determined that defendant's failure to appear in court on the VOP was a violation of the statute. The judge rejected defendant's claim that he had been denied the effective assistance of counsel. Accordingly, the judge entered an order dated June 17, 2013, denying PCR. Defendant appeals and argues:
SINCE THE BAIL JUMPING STATUTE, N.J.S.A.2C:29-7, "DOES NOT APPLY TO OBLIGATIONS TO APPEAR INCIDENT TO RELEASE UNDER SUSPENDED SENTENCE OR ON PROBATION OR PAROLE," AS IN [DEFENDANT'S] SITUATION, THE BAIL-JUMPING CONVICTION MUST BE VACATED.
We note initially that the State argues defendant's claim is barred by Rule 3:22-4(a), which provides in pertinent part that
Any ground for relief not raised in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.
We conclude the second exception applies here because enforcement of the Rule 3:22-4(a) procedural bar would result in a "fundamental injustice." For purposes of the rule, courts may find a "fundamental injustice" "when the judicial system has denied a defendant 'fair proceedings leading to a just outcome' or when 'inadvertent errors mistakenly impacted a determination of guilty or otherwise wrought a miscarriage of justice.'" State v. Nash, 212 N.J. 518, 546 (2013) (quoting State v. Mitchell, 126 N.J. 565, 587 (1992)).
Here, defendant claims that he was denied the effective assistance of counsel because his counsel failed to seek dismissal of the indictment and allowed him to plead guilty to the violation ofN.J.S.A. 2C:29-7, when the statute does not apply to him. As we explain herein, the PCR judge erred by determining defendant's failure to appear for the VOP proceeding was a violation of N.J.S.A. 2C:29-7. Therefore, application of the Rule 3:22-4(a) procedural bar would result in a "fundamental injustice."
As noted, defendant argues that the PCR court erred by finding that he was not denied the effective assistance of counsel. Defendant's claim is considered under the two-part test for ineffective assistance of counsel established by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under Strickland, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness."Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Furthermore, the Supreme Court of the United States has determined that a defendant is entitled to the effective assistance of counsel in connection with representation provided to an accused in connection with a plea. Lafler v. Cooper, ____ U.S.,, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012). Therefore, a defendant must establish a "reasonable probability" that the result would have been different had his attorney provided proper advice. Lafler, supra, U.S. at , 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674).
Defendant argues that his attorney erred by failing to file a motion for dismissal of the indictment and by allowing him to plead guilty to a violation of N.J.S.A. 2C:29-7, which provides that
A person set at liberty by court order, with or without bail, or who has been issued a summons, upon condition that he will subsequently appear at a specified time and place in connection with any offense or any violation of law punishable by a period of incarceration, commits an offense if, without lawful excuse, he fails to appear at that time and place. It is an affirmative defense for the defendant to prove, by a preponderance of evidence, that he did not knowingly fail to appear. The offense constitutes a crime of the third degree where the required appearance was to answer to a charge of a crime of third degree or greater, or for disposition of any such charge and the actor took flight or went into hiding to avoid apprehension, trial or punishment. The offense constitutes a crime of the fourth degree where the required appearance was otherwise to answer to a charge of crime or for disposition of such charge. The offense constitutes a disorderly persons offense or a petty disorderly persons offense, respectively, when the required appearance was to answer a charge of such an offense or for disposition of any such charge. Where the bail imposed or summons issued is in connection with any other violation of law, the failure to appear shall be a disorderly persons offense.
This section does not apply to obligations to appear incident to release under suspended sentence or on probation or parole. Nothing herein shall interfere with or prevent the exercise by any court of this State of its power to punish for contempt.
[N.J.S.A. 2C:29-7 (emphasis added.)]
Defendant argues that the exception in the statute applies here, where he was ordered to appear to respond to an alleged VOP. In response, the State argues that, with regard to persons on probation, the statutory exception only applies to a defendant's obligation to appear or otherwise report to a probation officer. As noted, the PCR judge, although stating that the statutory exemption was "a little vague," agreed with the State and ruled that the exception did not apply to defendant.
Our goal in interpreting a statute "'is to determine as best we can the intent of the Legislature, and to give effect to that intent.'" State v. Lenihan, 219 N.J. 251, 262 (2014) (quoting State v. Hudson, 209 N.J. 513, 529 (2012)). Our search for legislative intent "'begins with the language of the statute, and the words chosen by the Legislature should be accorded their ordinary and accustomed meaning.'" Ibid. (quoting Hudson, supra, 209 N.J.at 529). We must apply the law that was enacted.Ibid. (citing In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). We may not "'rewrite a plainly-written enactment of the Legislature nor presume that the Legislature intended something other than that expressed by way of the plain language.'" Ibid. (quoting O'Connell v. State, 171N.J. 484, 488 (2002)).
Here, N.J.S.A. 2C:29-7 addresses a defendant's obligation to appear "at a specified time and place in connection with any offense or any violation of law punishable by a period of incarceration" pursuant to either a court order or summons. However, the statute "does not apply to obligations to appear incident to release under suspended sentence or on probation or parole."N.J.S.A. 2C:29-7.
The term "obligations to appear incident to release under suspended sentence or on probation or parole" clearly encompasses a defendant's "obligation" to appear in court to respond to a charged VOP. Such an "obligation to appear" is "incident" to the defendant's release "on probation or parole." SeeState v. Clay, 230 N.J. Super. 509, 525 (App. Div. 1989) (noting that the statutory exception in N.J.S.A. 2C:29-7 applies to a defendant's obligation to appear "in court while 'on probation or parole.'").
Here, the PCR court ruled that the exception in N.J.S.A. 2C:29-7 for obligations to appear "incident" to probation only applies to an obligation to appear before a probation officer and does not encompass the obligation to appear before a court on a VOP. There is, however, nothing in the plain language of the statute which indicates that the Legislature intended to limit the exception in this manner. An obligation to appear in court on a VOP is just as much an obligation to appear "incident to" probation as an obligation to report to a probation officer.
We note that while the statute provides an exemption for a failure to appear in court on a VOP when required to do so, the statute preserves the court's authority to address any such nonappearance. The second sentence of the statutory exemption expressly provides that the court may punish by contempt any such failure to appear.
The provisions of N.J.S.A. 2C:45-3 provide further support for our interpretation of the statutory exception. N.J.S.A. 2C:45-3 states that any time before a defendant's discharge or termination of the period of suspension or probation:
(1) The court may summon the defendant to appear before it or may issue a warrant for his arrest;
(2) A probation officer or peace officer, upon request of the chief probation officer or otherwise having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order or that he has committed another offense, may arrest him without a warrant;
(3) The court, if there is probable cause to believe that the defendant has committed another offense or if he has been held to answer therefor, may commit him without bail, pending a determination of the charge by the court having jurisdiction thereof;
(4) The court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may revoke the suspension or probation and sentence or resentence the defendant, as provided in this section. No revocation of suspension or probation shall be based on failure to pay a fine or make restitution, unless the failure was willful.
Thus, N.J.S.A. 2C:45-3a expressly authorizes the court to issue a summons to compel a defendant to appear before it at any time before he or she is discharged or the period of suspension or probation ends. The court may therefore require a defendant to appear before it to respond to a charged VOP.
When so ordered, a defendant has an obligation to appear in court at the time and place specified. However, as we have concluded, the defendant's failure to appear in response to such a summons does not constitute a violation of N.J.S.A.2C:29-7 because the obligation to appear in court is clearly "incident to release under suspended sentence or on probation or parole." N.J.S.A.2C:29-7.
Even if we were of the view that the statutory exemption is reasonably susceptible to differing interpretations, we must be "guided by the rule of lenity, which requires us to construe penal statutes strictly and interpret ambiguous language in favor of a criminal defendant." State v. Livingston, 172N.J. 209, 218 (2002) (citations omitted). Therefore, we must construe the exemption in N.J.S.A. 2C:29-7 as applying not only to the obligation to appear before a probation officer, but also to any obligation to appear in court on a VOP.
Accordingly, we conclude that the PCR judge erred by denying relief. In our view, defendant established both prongs of the test for ineffective assistance of counsel under Strickland and Lafler. Defense counsel erred by failing to seek dismissal of Indictment No. 10-04-0577 on the ground that defendant's failure to appear on the VOP did not constitute a violation of N.J.S.A. 2C:29-7, and by allowing defendant to enter a plea of guilty to a violation of the statute. Defendant was undoubtedly prejudiced by counsel's errors.
Reversed and remanded to the trial court for entry of an order dismissing Indictment No. 10-04-0577 and vacating defendant's conviction for the violation of N.J.S.A. 2C:29-7.