                                NOT FOR PUBLICATION WITHOUT THE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.




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