                            NOT FOR PUBLICATION WITHOUT THE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-2381-16T1

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

ADEL MIKHAEIL, a/k/a
ADAL MIKHAAIL,

     Defendant-Appellant.
_____________________________

                Submitted May 2, 2018 – Decided January 31, 2019

                Before Judges Fuentes, Koblitz and Suter.

                On appeal from Superior Court of New Jersey, Law
                Division, Morris County, Indictment No. 08-09-0232.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Lee March Grayson, Designated Counsel, on
                the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent (Lila B. Leonard, Deputy Attorney General,
                of counsel and on the brief).
      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Defendant Adel Mikhaeil appeals from the order of the Criminal Part

denying his post-conviction relief (PCR) petition. We affirm.

      At all times relevant to this case, defendant worked as a bounty hunter.

On September 29, 2008, a State Grand Jury returned a multicount indictment

against defendant that charged him with multiple counts of second degree

conspiracy to commit official misconduct, N.J.S.A. 2C:3-2, second degree

offering an unlawful benefit to a public servant for official behavior , N.J.S.A.

2C:27-11, third degree theft by deception, N.J.S.A. 2C:20-4, third degree

commercial bribery, N.J.S.A. 2C:21-10, two counts of fourth degree falsifying

records, N.J.S.A. 2C:21-4(a), second degree financial facilitation of criminal

activity, N.J.S.A. 2C:21-27, third degree witness tampering, N.J.S.A. 2C:28-

5(a), third degree hindering apprehension, N.J.S.A. 2C:29-3, and fourth degree

fabricating physical evidence, N.J.S.A. 2C:28-6(2).

      On September 19, 2012, defendant pled guilty to all of the counts in the

indictment without an agreement with the State with respect to the terms o f his

sentence. On February 26, 2013, the court granted defendant's application to

withdraw his guilty plea and stand trial. On December 26, 2013, the court


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granted defendant's application to discharge his attorney and proceed pro se.

However, the court appointed his previous attorney to act as standby counsel

throughout the trial. Jury selection began on January 5, 2015. The trial judge

denied defendant's motion seeking the judge's recusal, the recusal of the Deputy

Attorney General assigned to represent the State, and a motion to stay the trial.

      On January 7, 2015, defendant entered into a negotiated plea agreement

with the State, the terms of which were memorialized in a letter from the Deputy

Attorney General dated December 15, 2014. Defendant thus pled guilty to one

count of second degree conspiracy to commit official misconduct, two counts of

second degree official misconduct, one count of second degree offering an

unlawful benefit to a public servant for official behavior, third degree theft by

deception, two counts of third degree commercial bribery, two counts of fourth

degree falsifying or tampering with records, third degree hindering

apprehension, and fourth degree tampering with evidence.

      With respect to sentencing, the December 15, 2014 plea agreement letter

provided in relevant part:

            [T]he State shall . . . recommend that the defendant be
            sentenced to a term in State Prison within the second
            degree range, between five (5) and ten (10) years, with
            no period of parole ineligibility, with the sentences for
            each of the charges to which defendant has pleaded
            guilty to run concurrently.

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                                        3
            At sentencing, both the defendant and the State shall be
            free to argue for whatever term each deems appropriate,
            provided the recommended sentence falls within the
            agreed upon range of between five (5) and ten (10)
            years in State Prison.

            The State shall also agree not to object to the
            defendant's admission into the Intensive Supervision
            Program ("ISP"), should he be deemed a suitable
            candidate for ISP, provided that the defendant, at the
            time of his release, has served at least six (6) months of
            his State prison sentence, including any jail time credit
            to which the defendant is entitled, as determined by the
            [c]ourt. Nothing in this plea agreement shall be deemed
            to prevent or preclude defendant from submitting his
            application for ISP or beginning the ISP application
            process before serving six (6) months of his State
            [P]rison sentence term, including any jail credit to
            which the defendant may be entitled.

      Defendant appeared for sentencing on March 27, 2015. Before imposing

sentence, the judge heard and denied defendant's motion to withdraw his guilty

plea. The judge thereafter sentenced defendant in accordance with the plea

agreement to an aggregate term of six years imprisonment, without any period

of parole ineligibility. The judge found aggravating factors N.J.S.A. 2C:44-1(a)

(3), the risk defendant will commit another offense, and N.J.S.A. 2C:44-1(a) (9),

the need to deter this defendant and others from violating the law; the judge also

found mitigating factors N.J.S.A. 2C:44-1(b) (2), defendant did not contemplate

his conduct would or could cause serious harm, and N.J.S.A. 2C:44-1(b) (7),


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                                        4
defendant did not have any history of criminal activity as an adult or delinquency

as a minor. Defendant was fifty years old at the time of sentencing.

      Defendant appealed the sentence through the summary process provided

under Rule 2:9-11. While the appeal was pending, the ISP Screening Board

notified defendant in a letter dated August 18, 2015 that he was not eligible due

to the (1) serious nature of the of offenses; (2) defendant's "needs exceeded the

scope and resources of the program"; and (3) "[a]bsence of sincerity and

motivation needed to carry out programmatic obligations." Thereafter, this

court affirmed defendant's sentence. State v. Adel Mikaeil, Docket No. A-4245-

14 (App. Div. October 28, 2015).

      On July 1, 2016, defendant filed this PCR petition pro se claiming the

denial of his ISP application as a basis for relief. In a certification submitted in

support of the petition, defendant stated that at the time he pled guilty he "had

already been assured by my standby attorney I was a good candidate for ISP and

that I would be admitted to the program if the judge agreed to it." Throughout

the certification, defendant repeatedly asserts that: "No one, including my

standby counsel, ever informed me that my offenses could be considered too

serious for admission to ISP."




                                                                            A-2381-16T1
                                         5
      Judge Thomas J. Critchley, Jr., assigned an attorney to represent

defendant in the prosecution of the PCR petition. PCR counsel submitted a brief

arguing defendant was denied the effective assistance of counsel when his

standby attorney advised him that he was to be admitted into ISP provided the

trial judge did not object. PCR counsel also argued that defendant "must be

released from custody" as a matter of fundamental fairness. Judge Critchley

heard oral argument from counsel on September 6, 2016. Judge Critchley denied

defendant's petition in an order dated November 3, 2016.        The order also

included his reasons for denying defendant's petition. Judge Critchley stated:

            The factual assertion underlying [d]efendant's claim is
            that he was "guaranteed" at the time of his guilty plea
            that he would be accepted into the Intensive
            Supervision on Parole program (ISP), and that the
            subsequent failure of that program to accept him
            entitled to him to withdraw his guilty plea.

            The [d]efendant's claim of ineffective assistance of
            counsel must be considered in the light of the fact that
            at the time of the plea he was voluntarily proceeding
            pro se. The trial court conducted a comprehensive
            hearing on this issue on December 22, 2014, and found
            that [d]efendant's decision to affirmatively waive his
            right to counsel and exercise instead his right to
            represent himself was made "knowingly, intelligently,
            and voluntarily." (The [c]ourt further determined that
            [d]efendant's previously court-appointed counsel
            would continue to serve in the role of "standby
            counsel.")


                                                                        A-2381-16T1
                                       6
            As a matter of law, by affirmatively waiving his right
            to counsel and instead representing himself,
            [d]efendant effectively relinquished any right to seek
            post-conviction relief for alleged "ineffective
            assistance of counsel." State v. King, 210 N.J. 2, 18
            (2012) . . . [.]

Judge Critchley also found that defendant's "assertions that he was guaranteed

that he would be admitted into ISP after serving 6 months are not supported by

the comprehensive record made in this case."

      Against this factual backdrop, defendant appeals raising the following

argument.

            POINT I

            THE PCR COURT ERRED IN DENYING THE
            DEFENDANT'S     PETITION    FOR    POST-
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING TO FULLY
            ADDRESS HIS CONTENTION THAT STANDBY
            COUNSEL MISLED HIM INTO BELIEVING THAT
            HE WAS AN IDEAL CANDIDATE FOR THE
            INTENSIVE SUPERVISION PROGRAM (ISP) AND
            FAILED TO ADEQUATELY ADVISE HIM THAT
            THE SERIOUSNESS OF HIS CRIMES AND OTHER
            FACTORS WOULD PRECLUDE HIM FROM
            ADMISSION INTO ISP.

            POINT II

            UNDER   THE        FUNDAMENTAL    FAIRNESS
            DOCTRINE, THE      PCR COURT ERRED BY NOT
            RELEASING THE      DEFENDANT FROM CUSTODY
            IN ORDER TO        FULFILL HIS REASONABLE

                                                                       A-2381-16T1
                                      7
            EXPECTATIONS AT THE TIME OF THE PLEA
            HEARING OR, ALTERNATIVELY, ALLOWING
            THE DEFENDANT TO WITHDRAW HIS GUILTY
            PLEAS.

            POINT III

            THE PCR COURT ERRED BY NOT GRANTING AN
            EVIDENTIARY HEARING.

      We reject these arguments and affirm substantially for the reasons

expressed by Judge Critchley in his well-reasoned order-opinion dated

November 3, 2016. Defendant knowingly waived his right to counsel. As the

Supreme Court reaffirmed in King, a defendant's decision to represent himself

in a criminal proceeding "is about respecting a defendant's capacity to make

choices for himself, whether to his benefit or to his detriment." 210 N.J. at 17

(quoting State v. Reddish, 181 N.J. 553, 585-86 (2004)).

      Affirmed.




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