                                NOT FOR PUBLICATION WITHOUT THE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-3170-18T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

BRANDON SMITH,

     Defendant-Appellant.
_______________________

                    Submitted May 11, 2020 – Decided June 1, 2020

                    Before Judges Geiger and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos. 14-05-
                    0560 and 14-05-0570.

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

                    Christopher L. C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (Nancy Anne
                    Hulett, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Brandon Smith appeals from a January 10, 2019 order denying

his petition for post-conviction relief (PCR) after an evidentiary hearing. We

affirm.

      On February 9, 2014, defendant, previously convicted for attempted

murder, entered a bar in Perth Amboy and pointed a gun at Edward Gonzalez.

Under Indictment No. 14-05-560, a grand jury charged defendant with fourth-

degree aggravated assault, N.J.S.A. 2C:12-l(b)(4) (count one), second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two), second-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)

(count three), third-degree riot, N.J.S.A. 2C:33-1(a)(3)(count four), and fourth-

degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five).     In a separate

indictment, No. 14-05-570, defendant was charged with second-degree certain

persons not to have weapons, N.J.S.A. 2C:39-7(b).

      Pursuant to a negotiated agreement, defendant pled guilty to the second-

degree possession of a weapon for an unlawful purpose charge (count three of

Indictment No. 14-05-560) and the second-degree certain persons offense under

Indictment No. 14-05-570. In return, the State agreed to dismiss the remaining

charges and to recommend a five-year sentence with forty-two months of parole

ineligibility on the possession of a weapon for an unlawful purpose charge with


                                                                         A-3170-18T1
                                       2
a concurrent five-year sentence with sixty months of parole ineligibility on the

certain person charge, along with applicable fines and penalties. In addition, the

sentences were to run consecutively to the five-year sentence defendant was then

serving for a parole violation.      At sentencing, the court considered the

aggravating and mitigating factors and sentenced defendant in accordance with

the plea agreement. All remaining counts in Indictment No. 14-05-560 were

dismissed.

      Defendant did not appeal his conviction or sentence. Instead, he filed a

PCR petition in which he maintained that his trial counsel was ineffective for

misinforming him about the time he would effectively serve under the plea

agreement. According to defendant, although he understood that his aggregate

sentence under the plea agreement would run consecutive to that related to his

parole violation, he claimed he had already received a parole date for that

violation and his trial counsel incorrectly advised him that the parole date would

not be affected by his plea. Defendant further claimed that as a result of pleading

guilty to the weapons offenses, and contrary to his counsel's advice, his parole

release date was changed resulting in him serving the complete five-year

sentence.    Defendant contended had his counsel advised him of this

consequence, he would not have pled guilty to the weapons charges.


                                                                           A-3170-18T1
                                        3
      As explained by defendant's PCR counsel:

            [Defendant was] aware that he had two pending
            charges. He was also aware that the charges amounted
            to a violation of his parole and that is why he had been
            incarcerated. However, he believed that he would still
            be eligible for parole. In fact, as stated in the
            Defendant's supplemental certification, trial counsel
            told him, specifically that his parole date "was not
            going to change." Defendant understood that the two
            charges were going to run consecutively to the parole
            violation. But, he did not understand that his guilty plea
            was going to have such a detrimental effect on the
            parole violation sentence. This was not told to him.

            In effect, Defendant was given a ten[-]year sentence,
            not a five[-]year term. This was error. Reasonably
            competent counsel should have explained to Mr. Smith
            that his parole date was going to change. Competent
            counsel should have told him that he would not get
            paroled, but rather, because he entered these guilty
            pleas, he was going to have to serve the entire five years
            for the parole violation. Reasonably competent counsel
            would have told Defendant he was actually getting a
            ten[-]year sentence. Counsel should have told him he
            would have to serve ten years before being released.

      After considering defendant's and his appointed counsel's submissions

along with the oral arguments of the parties, the first PCR judge scheduled an

evidentiary hearing. Judge Michael A. Toto, who was the plea and sentencing

judge but not the initial PCR judge, conducted that hearing. Judge Toto took

testimony from defendant's trial counsel and defendant.



                                                                         A-3170-18T1
                                        4
      Defendant's trial counsel testified that he had between five and ten

conversations with defendant in which they discussed the discovery produce d

by the State, the strength of the State's evidence against him, and a possible plea

deal. Counsel also recalled discussing the State's plea offer and the concepts of

concurrent and consecutive sentences. As to the effect of the plea on his parole

violation, counsel stated he advised defendant he would need to serve the five-

year aggregate sentence offered by the State consecutive to the time defendant

was currently serving for his parole violation. Counsel also testified that he was

unsuccessful in negotiating a plea that would include a sentence that was

concurrent to both his current charges and the sentence he was serving for his

parole violation and he communicated that fact to defendant.

      Counsel also testified that although he did not have a specific recollection

regarding any inquiry defendant may have made regarding the effect of his plea

on his parole date, he stated that if defendant raised the issue, he would have

informed him that he could not predict his release date for his parole violation.

Counsel specifically stated that he would have told defendant "effectively, I

don't know when parole [is] going to parole you out. You've got the five year

term[,] you've got to do it and it could be up to the five years." Defendant's

counsel also testified that defendant, prior to entering his plea "manifested an


                                                                           A-3170-18T1
                                        5
understanding that whatever happens [before] the parole board is beyond

[counsel's] control."

      Defendant's counsel also confirmed that the charges in the two indictments

exposed defendant to multiple second-degree weapons charges and an extended

term sentence. Accordingly, had defendant rejected the plea and was convicted

at trial, he would have been exposed to a significantly longer period of

incarceration, which also would have run consecutive to his parole violation

sentence. Finally, counsel explained that the State's proofs against defendant

were considerable. Indeed, the State's proofs included the fact that defendant, a

convicted felon, pointed his gun at the victim in a public location. Defendant's

actions were witnessed by numerous individuals and were recorded by a

surveillance video. Defendant also confessed to police shortly after his arrest in

a recorded statement.

      Defendant's counsel also explained certain discrepancies on defendant's

plea form. Specifically, counsel stated that the question asking if defendant was

on parole was incorrectly circled "no."      A separate question on the form,

however, which asked if defendant was aware his sentence could run

consecutive to his current sentence was answered in the affirmative.




                                                                          A-3170-18T1
                                        6
      Counsel also testified that he discussed defendant's parole status with him

and noted that Judge Toto specifically raised the issue with defendant during the

plea hearing, during which defendant acknowledged he was serving a five-year

sentence for a parole violation. In this regard, Judge Toto explicitly informed

defendant he would commence serving the sentence pursuant to the plea after

he completed his sentence for the parole violation.

      Defendant testified that when he conferred with his counsel, they

discussed the plea offer which he described as "five with a five offer

consecutive."   Defendant stated he understood the difference between a

consecutive and concurrent sentence and that the plea agreement included both

a concurrent and consecutive sentence such that he would serve his current

sentence after he completed serving his sentence for the parole violation.

Defendant stated that at the time he pled guilty, he had already appeared before

the parole board and "was given a twenty-nine-month hit which would have

made [him eligible to] get parole in July 2017." According to defendant, his

counsel advised him that if "[he] took the [plea] it wouldn't affect my parole

date." Defendant stated that he took the plea, hoping "that he would get eight

years."   He admitted on cross-examination, however, that his counsel also




                                                                         A-3170-18T1
                                       7
advised him that he could serve ten years and that discussion took place prior to

his plea.

      Judge Toto rendered a written opinion and concluded that defendant failed

to satisfy either prong of the two-part test for ineffective assistance of counsel

detailed in Strickland v. Washington, 466 U.S. 688 (1984) and adopted by the

New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). With respect

to prong one, Judge Toto, after having the opportunity to assess the credibility

of defendant and his trial counsel, found that defendant understood the terms of

the plea agreement and failed to establish that his trial counsel misadvised him

regarding the penal consequences of the plea and that the plea would not affect

his parole violation conviction resulting in defendant serving a sentence less

than ten years.

      More specifically, Judge Toto determined that defendant's trial counsel

discussed the plea offer with him and its ramifications. In this regard, he noted

that defendant conceded during the evidentiary hearing that he was aware that

the combined sentence could total ten years, he had knowledge that the two

pending charges amounted to a parole violation, and the court informed him that

those charges would run concurrently, but would be consecutive to the parole

violation.


                                                                          A-3170-18T1
                                        8
      Judge Toto also relied upon his colloquy with defendant at the plea

hearing where defendant referenced he was "going to do a five-year term" with

respect to the parole violation.1 He emphasized that the plea colloquy indicated

defendant could not make a prima facie showing of ineffective assistance as



1
  The relevant plea colloquy between the court and defendant during the plea
hearing is as follows:

            Q. . . . . What sentence are you serving now?

            A. Five years parole violation.

            Q. Okay. So, . . .you're going to do a five-year term?

            A. Yes.

            Q. . . . you understand that once you complete that
            term, whenever it is, then this sentence is going to start?
            You understand that, right?

            A. Yes.

            Q. Okay. And on this sentence you're looking at
            basically a five with a five, right?

            A. Yes.

            Q. Okay. And that means you have to serve all five of
            those years before you're eligible for parole. You
            understand that?

            A. Yes.


                                                                          A-3170-18T1
                                        9
defendant had ample opportunity to raise his concerns regarding parole

eligibility, how his guilty plea might affect his parole date, or when his parole

violation sentence would begin.

      Finally, Judge Toto found that defendant's claim that his attorney's

misadvice prevented him from fairly evaluating his plea offer also failed for

similar reasons. Relying again on the plea colloquy, he reemphasized that

defendant understood his plea offer and sentence, and he discussed his

sentencing exposure with counsel, but defendant failed to raise any of these

issues during the plea hearing despite having an opportunity to do so.

      On appeal, defendant limits his argument to the following single

contention:

              POINT I

              [DEFENDANT] IS ENTITLED TO RELIEF ON HIS
              CLAIM THAT HIS ATTORNEY RENDERED
              INEFFECTIVE ASSISTANCE OF COUNSEL BY
              MISADVISING HIM ABOUT HIS SENTENCE.

      We find no merit to defendant's argument and affirm substantially for the

reasons stated by Judge Toto in his eleven-page written decision of January 10,

2019. R. 2:11-3(e)(2). We provide the following comments to amplify the

court's reasoning.



                                                                         A-3170-18T1
                                      10
      Our review of an order granting or denying PCR involves consideration

of mixed questions of fact and law. State v. Harris, 181 N.J. 391, 415-16 (2004).

After a court has held an evidentiary hearing, we defer "to a PCR court's factual

findings based on its review of live witness testimony" and will uphold findings

that are "supported by sufficient credible evidence in the record." State v. Nash,

212 N.J. 518, 540 (2013). However, "we need not defer to a PCR court's

interpretation of the law," which we review de novo. Id. at 540-41.

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must show: (1) counsel's performance was deficient; and (2) the

deficiency prejudiced the defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J.

at 58. The Strickland test applies to challenges to guilty pleas. Hill v. Lockhart,

474 U.S. 52, 58 (1985). A defendant must establish that his attorney failed to

provide advice that "was within the range of competence demanded of attorneys

in criminal cases." Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771

(1970)). A defendant also must show "there is a reasonable probability that, but

for counsel's errors, he would not have pleaded guilty and would have insisted

on going to trial." Id. at 59. Further, as our Supreme Court recently explained

in State v. McNeal, 237 N.J. 494 (2018), "[a] defendant has the right not to be

'misinformed' about a material element of a plea agreement and to have his or


                                                                           A-3170-18T1
                                       11
her 'reasonable expectations' fulfilled." Id. at 499 (citing State v. Bellamy, 178

N.J. 127, 134 (2003) (other citations omitted)).

      The record from the evidentiary hearing amply supports Judge Toto's

finding that defendant entered his plea voluntarily and with a full understanding

of its penal consequences and his counsel did not misadvise him. Judge Toto

clearly informed defendant that the recommended sentence was an aggregate

five-year term with an attendant five-year period of parole ineligibility that

would be consecutive to the parole violation he was serving. After having an

opportunity to evaluate the testimony of defendant and his trial counsel who the

court deemed credible, Judge Toto concluded that trial counsel did not promise

that defendant would serve a term less than ten years and, in this regard,

defendant confirmed that counsel advised him he could serve ten years. As these

factual and credibility findings were amply supported by substantial evidence

elicited at the evidentiary hearing, they warrant our deference. See Nash, 212

N.J. at 540 (2013).

      Further, as Judge Toto concluded, defendant failed to establish that he was

prejudiced by counsel's alleged misadvice. There was substantial evidence of

defendant's guilt and, had defendant proceeded to trial and was convicted, he

faced an extended term sentence.       Defendant also received the benefit of


                                                                          A-3170-18T1
                                       12
dismissal of numerous other charges in Indictment 14-05-560 and received a

concurrent rather than a consecutive sentence.

      In sum, we agree with Judge Toto that defendant failed to establish that

the alleged deficiencies of his trial counsel met either the performance or

prejudice prong of the Strickland/Fritz test.

      Affirmed.




                                                                       A-3170-18T1
                                       13
