                                NOT FOR PUBLICATION WITHOUT THE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-5217-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAMEEL T. CUMMINGS, a/k/a
JAMEEL BATTLE, LAMEEL
TYREE CUMMINGS, MILL,

     Defendant-Appellant.
______________________________

                    Submitted February 11, 2019 – Decided February 22, 2019

                    Before Judges Haas and Sumners.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 11-12-1260.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel;
                    Alison S. Perrone, on the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Patricia L.F.
                    Cronin, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Lameel Cummings appeals from the July 13, 2017 Law

Division order denying his petition for post-conviction relief (PCR) following

an evidentiary hearing. We affirm.

      A Union County grand jury charged defendant in a one-count indictment

with third-degree possession of an electronic communication device while he

was an inmate in the county jail, N.J.S.A. 2C:29-10(b). Three months later,

defendant attended a pre-trial conference where his attorney stated on the record

that the State had offered to recommend that the court sentence defendant to a

three-year sentence, which would run consecutive to a term he was already

serving for aggravated manslaughter, if he pled guilty. At the next conference,

defense counsel stated that defendant was willing to accept a three-year,

concurrent sentence or, in the alternative, a one-year consecutive sentence in

return for his plea. However, the State would not accept this counter-offer.

      Soon thereafter, defendant agreed to plead guilty. In doing so, he accepted

the State's offer that it would recommend the imposition of a consecutive three -

year term at the time of sentencing. In keeping with this agreement, defendant's




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                                       2
plea form stated that the prosecutor would recommend a "3 flat C/S [1] to 09-07-

00684[,]" which was the indictment number for defendant's aggravated

manslaughter conviction. At the plea hearing, the court advised defendant that

the State was recommending that the three-year sentence run consecutive to his

current sentence. Defendant confirmed that this was his "understanding of the

plea[.]" Several months later, the court sentenced defendant to a consecutive

three-year term in accordance with the negotiated plea agreement.

      Defendant appealed his sentence, and argued that a concurrent, rather than

a consecutive sentence, would have been more appropriate because, although

the defendant had possessed a cell phone while in the county jail, he was not the

one who smuggled it into the institution. We heard defendant's appeal on our

Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, rejected

his contention that a consecutive sentence was inappropriate, and affirmed the

three-year, consecutive sentence. State v. Cummings, No. A-2441-15 (App.

Div. June 6, 2016).

      Defendant then filed a timely petition for PCR.        In a supplemental

certification, defendant asserted that his attorney provided him with ineffective


1
  At the evidentiary hearing, defense counsel testified that she wrote the term
"C/S" on the form and, before doing so, explained to defendant that it meant
"consecutive."
                                                                         A-5217-16T4
                                       3
assistance at the plea hearing because she failed to tell him "about the

differences between a consecutive and concurrent sentence." He claimed he

believed the term "C/S" on the plea form he signed "meant custodial sentence[,]"

rather than "consecutive sentence." Defendant alleged that had he known that

he was going to serve a three-year sentence following the conclusion of his

sentence for aggravated manslaughter, he would not have accepted the plea

agreement.

      Judge John Deitch found that defendant was entitled to an evidentiary

hearing on his petition. Defendant called his trial attorney as his only witness.

The attorney testified that although she had only a vague recollection of the plea

hearing and her conversations with defendant, she always explained all aspects

of a plea agreement to her clients as a matter of practice. Whenever she used

the term "C/S" as "shorthand for consecutive" on the plea form, the attorney

stated she explained this term to her client. When asked on cross-examination

whether defendant "ever express[ed] any misunderstandings about how the

consecutive sentence would be applied to the . . . aggravated-manslaughter

sentence[,]" the attorney stated she "recall[ed] [defendant] being angry about the

consecutive nature of the plea offer, as was I." Defendant did not testify in

support of his petition, and the State called no witnesses of its own.


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                                        4
      Following the hearing, Judge Deitch concluded that defendant failed to

satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687

(1984), which requires a showing that defense counsel's performance was

deficient and that, but for the deficient performance, the result would have been

different. In his thorough written opinion, the judge found that defendant's

attorney's testimony was credible, and that defendant was fully aware of the

distinction between a concurrent and a consecutive sentence. In so ruling, the

judge further found that defendant's position "that he was never properly

informed of what 'consecutive' meant in a sentencing context" was "incredible

when compared to the record in this case[.]" This appeal followed.

      On appeal, defendant raises the following contention:

            POINT ONE

            DEFENSE COUNSEL'S FAILURE TO PROPERLY
            EXPLAIN THE CONSECUTIVE NATURE OF THE
            PLEA AGREEMENT TO DEFENDANT DEPRIVED
            DEFENDANT OF HIS RIGHT TO EFFECTIVE
            ASSISTANCE OF COUNSEL.

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate


                                                                           A-5217-16T4
                                        5
specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, State v. Fritz, 105 N.J. 42, 52 (1987), a defendant must demonstrate

with "reasonable probability" that the result would have been different had he

received proper advice from his trial attorney. Strickland, 466 U.S. at 694.

      Where, as here, the judge conducts an evidentiary hearing, we must

uphold the judge's factual findings, "so long as those findings are supported by

sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440

(2013) (internal quotation marks omitted) (quoting State v. Robinson, 200 N.J.

1, 15 (2009)).    Additionally, we defer to a trial judge's findings that are

"substantially influenced by [the trial judge's] opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy." Ibid. (alteration in original) (internal quotation marks omitted) (quoting

Robinson, 200 N.J. at 15).

      Having considered defendant's contention in light of the record and the

applicable law, we affirm the denial of defendant's PCR petition substantially


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                                        6
for the reasons detailed at length in Judge Deitch's comprehensive written

opinion. As the judge expressly found, defendant's attorney credibly testified

that she always explained the nature of the proposed sentence to her clients. In

addition, defendant was present at two pre-trial conferences where the proposed

consecutive sentence was discussed, and the judge expressly advised him during

the plea hearing that the sentence in the present case would be consecutive to

the sentence for aggravated manslaughter that he was already serving.

Therefore, the record fully supports the judge's determination that defendant's

attorney properly represented and advised him concerning his sentence.

      Affirmed.




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