                                NOT FOR PUBLICATION WITHOUT THE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-4207-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CYNTHIA MYERS,

     Defendant-Appellant.
______________________________

                    Submitted November 1, 2018 – Decided March 19, 2019

                    Before Judges Whipple and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 09-12-3011.

                    Cynthia Myers, appellant pro se.

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (John J. Santoliquido, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Cynthia Myers appeals from the February 26, 2016 order of the

Law Division denying her second petition for post-conviction relief (PCR)

without an evidentiary hearing. We affirm.

                                      I.

      On October 8, 2009, Myers and a co-defendant devised a plan to rob John

Quann, Jr. They lured Quann from his home with the promise of sex and drove

with him to Camden County, where in the early morning hours of October 9,

2009, the two repeatedly struck him in the head and face with a hammer, and

strangled him with a scarf. After driving the injured Quann to a remote area of

Atlantic County, Myers and her co-defendant bound his hands behind his back,

and tied a shoelace around his neck to strangle him. The two stole Quann's

wallet and car, and fled, leaving their victim to die alone in the woods. Five

days later, a hunter discovered Quann's lifeless body. After being apprehended

with Quann's car, Myers and her co-defendant confessed to his murder.

      An Atlantic County grand jury charged Myers with: first degree murder,

N.J.S.A. 2C:11-3(a)(1) and (2); first degree kidnapping, N.J.S.A. 2C:13-1(b);

first degree robbery, N.J.S.A. 2C:15-1; first degree felony murder while

attempting to commit robbery, N.J.S.A. 2C:11-3(a)(3); first degree felony

murder while attempting to commit kidnapping, N.J.S.A. 2C:11-3(a)(3); first


                                                                        A-4207-16T3
                                      2
degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-

3(a)(1) and (2); second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2

and N.J.S.A. 2C:15-1; second degree conspiracy to commit aggravated assault,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b); second degree aggravated assault,

N.J.S.A. 2C:12-1(b); third degree assault with a deadly weapon, N.J.S.A. 2C:12-

1(b)(2); and third degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4.

      On January 27, 2010, pursuant to a negotiated agreement, defendant

entered a plea of guilty to first degree felony murder while attempting to commit

robbery, and second degree conspiracy to commit robbery. In accordance with

the plea agreement, the State dismissed the remaining charges and recommended

a thirty-eight-year term of imprisonment for felony murder, subject to an eighty-

five percent period of parole ineligibility pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, and a concurrent seven-year term for conspiracy

to commit robbery.

      At the plea hearing, defendant stated that she was satisfied with the

agreement and with the representation provided by her counsel. She admitted

on the record to participating in the robbery and murder of Quann. During the




                                                                         A-4207-16T3
                                       3
hearing, the court and counsel referred to the agreed upon period of parole

ineligibility as thirty-two years and three months.

      At the subsequent sentencing hearing, defendant interrupted her attorney

while he was addressing the court and announced she wanted to withdraw her

plea. Although defendant had previously submitted a letter to the court stating

that she wished to withdraw her plea, she had not provided a copy of the letter

to her counsel. Defendant's attorney informed the court that he was unaware of

her intention to seek withdrawal of her plea. The court granted counsel's request

to permit defendant to argue a motion to withdraw her plea on her own behalf.

Defendant argued that the factual basis for her plea did not support a conviction

for felony murder, but even if it did, the factual basis satisfied the elements for

an affirmative defense to the crime. The court denied the motion and sentenced

defendant in accordance with the plea agreement, imposing an aggregate thirty -

eight-year sentence with an eighty-five-percent period of parole ineligibility,

along with fines, penalties, and restitution.

      Defendant appealed her sentence and the denial of her motion to withdraw

her plea. We affirmed defendant's sentence, State v. Myers, No. A-1539-10

(App. Div. June 29, 2011), and the denial of her motion, State v. Myers, No. A-




                                                                           A-4207-16T3
                                         4
01539-10 (App. Div. Aug. 2, 2011). The Supreme Court denied defendant's

petition for certification. State v. Myers, 209 N.J. 430 (2012).

      On March 21, 2012, defendant filed her first petition for PCR. She argued

that she was denied effective assistance of counsel at trial because her attorney:

(1) did not advocate on her behalf on her motion to withdraw her guilty plea; (2)

had a conflict of interest arising from an ethics complaint defendant filed against

him; (3) failed to file a motion to suppress her statements to police; (4) failed to

request a restitution hearing to determine her ability to pay; and (5) failed to

contact several alibi witnesses. The trial court denied defendant's first PCR

petition without an evidentiary hearing. We affirmed. State v. Myers, No. A-

4391-12 (App. Div. Jan. 6, 2015).       The Supreme Court denied defendant's

petition for certification. State v. Myers, 221 N.J. 492 (2015).

      On June 7, 2015, defendant filed her second petition for PCR. She alleged

that she was denied effective assistance of counsel on her first PCR petition

because her counsel failed to argue that: (1) she had to argue her motion to

withdraw her guilty plea on her own behalf; and (2) her trial counsel

misinformed her as to the length of the parole ineligibility period to be

recommended by the State in exchange for her guilty plea by advising her that

the period was nineteen days shorter than it actually is.


                                                                            A-4207-16T3
                                         5
      It appears that at the time of the plea agreement and sentencing, the parties

and the court calculated the agreed upon parole ineligibility period based on the

number of months in a thirty-eight-year sentence, but misinterpreted the result

of their calculation (38 years x 12 months = 456 months x .85 = 387.6

months ÷ 12 months = 32.3 years). The parties and court appeared to be under

the impression that 32.3 years equates to thirty-two years and three months.

However, 32.3 years equals thirty-two years and 3.6 months because .3 years is

3.6 months, not three months (12 months x .3 = 3.6 months). Six-tenths of a

month is nineteen days (31 days x .6 = 18.6 days). The correct period of

parole ineligibility imposed is thirty-two years, three months, and nineteen days.

      On February 26, 2016, Judge Bernard E. DeLury, Jr., who presided at

defendant's plea and sentencing hearings, and decided her first PCR petition,

issued a comprehensive written opinion denying her second PCR petition

without an evidentiary hearing.      Judge DeLury concluded that defendant's

argument that her trial counsel abandoned her when she sought to withdraw her

guilty plea had been considered and rejected on her direct appeal and in her first

PCR petition. As a result, the judge held that defendant is barred from raising

the argument for a third time by Rule 3:22-5.




                                                                           A-4207-16T3
                                        6
      The court also concluded that defendant had not established a prima facie

case of ineffective assistance of counsel with respect to the advice she received

about the length of the parole ineligibility period. The court found that even if

defendant's first PCR counsel had raised the argument, defendant was unlikely

to have been afforded relief. Noting that defendant was facing likely conviction

and life imprisonment without the possibility of parole, the court concluded that

"there is no rational possibility that [defendant] would have rejected the plea

offer and proceeded to trial on account of an extra nineteen days imprisonment."

Thus, the court held, even though defendant's counsel advised her that the parole

ineligibility period was nineteen days shorter than it actually is, had the correct

advice been given, the outcome would not have changed. The court also found

that defendant repeatedly acknowledged in writing that she would serve eighty-

five percent of her sentence before being eligible for parole. In light of these

conclusions, the court found that an evidentiary hearing was not warranted. On

February 26, 2016, the judge entered an order denying defendant's second PCR

petition.

      This appeal followed.        On appeal, defendant raises the following

arguments for our consideration:




                                                                           A-4207-16T3
                                        7
POINT I

PETITIONER'S     FEDERAL     AND   STATE
CONSTITUTIONAL RIGHTS TO EFFECTIVE
ASSISTANCE OF FIRST PCR COUNSEL AND DUE
PROCESS OF LAW WERE VIOLATED WHEN
COUNSEL FAILED TO RAISE THE ISSUE THAT
TRIAL COUNSEL MISINFORMED PETITIONER
AS TO THE PERIOD OF INCARCERATION SHE
WOULD FACE AND DID NOT CORRECT THE
COURT'S ERROR AND THE STATE'S ERROR IN
MISINFORMING HER OF THE INCARCERATION
CONSEQUENCES       OF   THE   PLEA   AND
THEREFORE SHE COULD NOT HAVE MADE A
VOLUNTARY AND KNOWING PLEA, AND
FURTHER FAILED TO RAISE INEFFECTIVE
ASSISTANCE OF DIRECT APPEAL COUNSEL FOR
NOT      RAISING    THE    INCARCERATION
CONSEQUENCES ISSUE. (U.S. CONST. AMEND.
V, VI & XIV)

POINT II

THE DEFENDANT WAS DENIED HER RIGHT TO
THE EFFECTIVE ASSISTANCE OF FIRST POST
APPELLATE     COUNSEL   [SIC],  THEREBY
DEPRIVING HER OF DUE PROCESS OF LAW AND
A FAIR TRIAL AS GUARANTEED BY THE SIXTH
AND FOURTEENTH AMENDMENT[S] OF THE
UNITED STATES CONSTITUTION AND ARTICLE
1, PARAGRAPH 10, OF THE NEW JERSEY
CONSTITUTION DUE TO THE FAILURE ON THE
PART OF FIRST POST APPELLATE COUNSEL
[SIC] TO RAISE OBVIOUS ISSUES OF TRIAL
ERROR.




                                           A-4207-16T3
                   8
            POINT III

            PETITIONER HAS PRESENTED A PRIMA FACIE
            CLAIM OF INEFFECTIVE ASSISTANCE OF FIRST
            PCR COUNSEL AND SHOULD HAVE RECEIVED
            AN EVIDENTIARY HEARING.

In her reply brief, defendant argues:

            THE STATE'S SPURIOUS RESPONSE IS DEVOID
            OF MERIT AND APPELLANT'S PLEA SHOULD BE
            VACATED AND A NEW TRIAL GRANTED.

                                        II.

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610

(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.

Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance

of counsel, the defendant must meet the two-part test established by Strickland,

466 U.S. at 686, and adopted by our Supreme Court in Fritz, 105 N.J. at 58.

      Under Strickland, a defendant first must show that his or her attorney

made errors "so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at

687. Counsel's performance is deficient if it "[falls] below an objective standard

of reasonableness." Id. at 688.

                                                                          A-4207-16T3
                                        9
      A defendant also must show that counsel's "deficient performance

prejudiced the defense." Id. at 687. The defendant must establish that "there is

a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different."         Id. at 694. "A reasonable

probability is a probability sufficient to undermine confidence in the outcome"

of the proceeding. Ibid.

      The right to the effective assistance of counsel extends to legal assistance

related to the entry of a guilty plea. State v. Gaitan, 209 N.J. 339, 350-51 (2012).

To set aside a guilty plea based on ineffective assistance of counsel, the

"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. Nunez-

Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.

DiFrisco, 137 N.J. 434, 457 (1994)).

      A defendant is entitled to an evidentiary hearing on a PCR petition if the

defendant presents a prima facie case in support of PCR, the court determines

there are material issues of fact that cannot be resolved based on the existing

record, and the court finds that an evidentiary hearing is required to resolve the


                                                                            A-4207-16T3
                                        10
claims presented. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354

(2013) (citing R. 3:22-10(b)).

      Finally, Rule 3:22-5 provides that

            [a] prior adjudication upon the merits of any ground for
            relief is conclusive whether made in the proceedings
            resulting in the conviction or in any post-conviction
            proceeding brought pursuant to this rule or prior to the
            adoption thereof, or in any appeal taken from such
            proceedings.

The Supreme Court has held that

            [p]reclusion of consideration of an argument presented
            in post-conviction relief proceedings should be effected
            only if the issue raised is identical or substantially
            equivalent to that adjudicated previously on direct
            appeal.

            [State v. Marshall, 148 N.J. 89, 150 (1997) (quoting
            State v. Bontempo, 170 N.J. Super. 220, 234 (Law Div.
            1979)).]

      Having carefully reviewed defendant's arguments in light of the record

and applicable legal principles, we affirm the February 26, 2016 order for the

reasons stated by Judge DeLury in his thorough and well-reasoned written

opinion. We add only the following comments.

      We note that the nineteen days at issue here concern defendant's period of

parole ineligibility, not her term of incarceration.   There is, of course, no

guarantee that defendant will be released on parole when she first becomes

                                                                        A-4207-16T3
                                      11
eligible. Defendant, therefore, mischaracterizes the parole ineligibility period

as the "maximum sentence" she would have agreed to in a plea agreement. In

fact, the maximum sentence defendant agreed to is thirty-eight years, which is

precisely the sentence she received.

      Affirmed.




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                                       12
