NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Transcription

1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. STATE OF NEW JERSEY, v. Plaintiff-Respondent, NINA ADEBAJO, Defendant-Appellant. Submitted June 1, 2016 Decided July 7, 2016 PER CURIAM Before Judges Yannotti and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Morris County, Accusation No Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). Defendant Nina Adebajo appeals from an order entered by the Law Division on August 20, 2014, denying her petition for postconviction relief (PCR) without an evidentiary hearing. We affirm.

2 Defendant was charged under Accusation No with second-degree wrongfully obtaining and using another person's identification, N.J.S.A. 2C:21-17a(4) (count one); third-degree wrongfully obtaining and using another person's identification, N.J.S.A. 2C:21-17a(4) (count two); and third-degree credit card theft, N.J.S.A. 2C:21-6c(1) (count three). Defendant thereafter entered into a plea agreement, under which she agreed to plead guilty to the three charges. The State agreed to recommend a six-year prison term, with three years of parole ineligibility, to run concurrently to sentencing imposed in Hudson and Bergen counties. The State also agreed to the dismissal of various other charges which were identified in Attachment A to the plea agreement, and not to file additional complaints regarding identity thefts from two auto dealerships. Defendant entered her plea on February 14, She provided a factual basis for her plea, and the court found that defendant had entered the plea knowingly, intelligently and voluntarily. The assistant prosecutor noted that the State and defendant had agreed to the amount of restitution, which was then calculated to be about $41, The assistant prosecutor stated that he would provide the court with the amount of restitution when finally agreed upon. He also stated that 2

3 defendant had agreed to forfeit other property, which would be separate and apart from the restitution. Defendant was sentenced on March 22, Defense counsel asked the court to exercise its discretion and not impose any period of parole ineligibility. Counsel noted that defendant would not be able to participate in certain rehabilitation programs until she is eligible for parole. Counsel stated that defendant is willing to take steps, such as sending letters "or whatever" to banks, credit card companies, or credit bureaus, to assist the victims in putting "their financial lives back in order." The assistant prosecutor then informed the court that he had conferred with defense counsel that morning with respect to "the revised restitution figure." He stated that at the time the plea was entered, the restitution figure was set at $41, Since that time, we have received additional information from the various banks and credit card companies that led us to recalculate the restitution figure. It's the difference of about $85. And the new total would be $41, And it's my understanding that counsel and the defendant do not object to the change in that restitution figure. [DEFENSE COUNSEL]: That's correct, Judge. The assistant prosecutor noted that defendant was being sentenced for offenses involving more than ten victims. The 3

4 offenses included identity theft, which the prosecutor stated was "a crime that keeps on giving." He stated You know, a lot of crime occurs, a victim suffers from it and is able to move on. It's an incident that occurs, and [the victims] deal with it and they move on. Identity theft is quite different, because it's a crime that has a ripple effect. And as time goes on, you know, the victims are required to repair their credit histories, close bank accounts, get new credit cards, and there's that fear that every day you're going to go to your mailbox or you're going to listen to the voic that you have and find out that something else has been compromised along the way. And [the victims] really have no idea where these episodes end. Two victims discussed the effect defendant's offenses had upon them. Defendant then addressed the court and apologized for the lives she had affected. Defendant did not express any disagreement with the agreed-upon amount of restitution. She did not suggest that she did not have the ability to pay the restitution amount, or ask the court to conduct a restitution hearing. The court found aggravating factors three, N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the offenses of which she has been convicted); and nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others 4

5 from violating the law). The judge also found mitigating factor six, N.J.S.A. 2C:44-1b(6) (defendant has or will compensate the victims for the damage sustained). The judge noted that defendant had pending charges in Bergen and Essex counties, and a prior juvenile and adult criminal history, with an "extremely significant number of charges." The judge also noted that defendant had a prior substance abuse history and psychological problems. She had been diagnosed as having kleptomania. The judge sentenced defendant in accordance with the plea agreement to six years of incarceration, with three years of parole ineligibility. The court imposed various fines and penalties, and required defendant to pay $41, in restitution. The court dismissed twenty-one other charges. The judge entered a judgment of conviction on March 29, Defendant filed an appeal, which was limited to the sentence imposed. The appeal was heard on our excessive sentence oral argument calendar. R. 2:9-11. Among other things, defendant argued that the trial court erred by failing to conduct an ability to pay hearing on restitution. On December 16, 2013, we affirmed defendant's sentence, ordered the trial court to correct the judgment of conviction "to reflect that the 268 days of jail time credit applies to Accusation No ," and 5

6 rejected defendant's request for an ability to pay hearing. State v. Adebajo, No. A (App. Div. Dec. 16, 2013). Thereafter, defendant filed a pro se petition for PCR in the Law Division. She argued that the court erred by failing to conduct a hearing on her ability to pay the restitution ordered. The court assigned counsel to represent defendant, and defendant filed a certification in support of her petition, in which she asserted that plea counsel was ineffective. She stated that her attorney told her he would argue against the restitution amount at sentencing and request a restitution hearing but never did. Defendant noted, however, that she did not want to withdraw her plea. PCR counsel filed a brief in support of defendant's petition. On August 20, 2014, the PCR judge considered the petition. After hearing oral argument from counsel, the judge placed an oral decision on the record. The judge noted that defendant did not want to withdraw her plea, but wanted the trial court to conduct an ability to pay hearing on restitution. The judge found that defendant was barred by Rule 3:22-5 from asserting her demand for an ability to pay hearing because that issue had been addressed by the court in her prior appeal. The judge nevertheless addressed defendant's claim of ineffective assistance of counsel. The judge observed that there 6

7 was nothing in the record to support defendant's claim that plea counsel assured her he would contest the amount of restitution and seek an ability to pay hearing. The judge noted that at sentencing, the assistant prosecutor confirmed the amount of restitution the State and defendant had agreed upon. The judge pointed out that defense counsel and defendant did not object to the amount. The judge observed that defendant had claimed she was too nervous to say anything about restitution at the sentencing proceeding. The judge stated, however, that defendant had the opportunity to speak at the sentencing hearing. She did not dispute the amount of restitution or indicate she wanted a hearing on her ability to pay. The judge found that the existing record refuted defendant's claim that she wanted to contest the amount of restitution and a restitution hearing. The judge therefore determined that defendant had not presented a prima facie case for relief. The judge entered an order dated August 20, 2014, denying PCR. This appeal followed. On appeal, defendant argues: POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. 7

8 POINT II THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE, REGARDLESS OF WHETHER TRIAL COUNSEL WAS INEFFECTIVE UNDER THE STRICKLAND TEST, DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE NEW JERSEY CODE OF CRIMINAL JUSTICE TO BE PROTECTED FROM AN ORDER OF RESTITUTION IN THE AMOUNT OF $41, WITHOUT A HEARING TO DETERMINE HER ABILITY TO PAY WAS VIOLATED. POINT III DEFENDANT'S PETITION WAS NOT PROCEDURALLY BARRED. POINT IV THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSITANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. We are convinced that defendant's arguments are entirely without merit. As noted, defendant argues our prior decision rejecting her demand for an ability to pay hearing does not preclude her from asserting this claim in a PCR petition. We disagree. Rule 3:22-5 provides that, "A prior adjudication upon the merits of any ground for [PCR] 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 rule is not, however, "an inflexible command" and we may consider the claim 8

9 if it involves a constitutional issue of "sufficient import." State v. Franklin, 184 N.J. 516, 528 (2005). As we have explained, in her direct appeal, defendant argued that the trial court erred by failing to conduct a hearing on her ability to pay restitution. We rejected her claim. Moreover, the issue is not of sufficient constitutional significance to override the procedural bar. We therefore conclude that Rule 3:22-5 precludes defendant from arguing that she was denied due process because the trial court did not conduct a hearing on her ability to pay restitution. Defendant further argues that she was denied the effective assistance of counsel because her plea counsel did not contest the amount of restitution or seek an ability to pay hearing. Again, we disagree. Here, the PCR judge found that defendant had not established a prima facie case of ineffective assistance of counsel, under the test established by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 9

10 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must establish that counsel "made errors so serious that counsel was not functioning as the "counsel" guaranteed [to] the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must overcome the "strong presumption" that counsel exercised "reasonable professional judgment" and "sound trial strategy" in handling the defense. Id. at , 104 S. Ct. at , 80 L. Ed. 2d at A defendant also must show that counsel's deficient performance "prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant is required to 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, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We are convinced that the PCR judge correctly found that defendant had not established a prima facie case for relief under the Strickland standard. We note initially that there is nothing in the record to support defendant's assertion that her attorney assured her he would contest the amount of restitution and demand an ability to pay hearing. When defendant entered her plea, the assistant prosecutor noted that the State and defendant's attorney had agreed upon the amount of restitution 10

11 that defendant would pay, which was then calculated at $41, Defendant's counsel did not dispute the assistant prosecutor's statement. Defendant had the opportunity to address the issue and said nothing. At the time of sentencing, the assistant prosecutor provided the court with the precise amount of restitution that defendant had agreed to pay, which was $41, Defense counsel did not object to that amount. Thereafter, defendant addressed the court and did not dispute the agreed-upon amount. Defendant did not state that she did not have the ability to pay, or that her attorney had assured her she would be afforded a hearing on restitution. It is therefore clear that defendant never disputed the amount of or her ability to pay restitution. Under the circumstances, counsel was not deficient in failing to contest the amount of restitution or seek an ability to pay hearing. We therefore conclude that defendant has not overcome the strong presumption that her attorney exercised reasonable professional judgment in his handling of the restitution issue. Moreover, defendant failed to show that she was prejudiced by counsel's alleged deficient performance. She did not present the PCR court with any evidence showing that the amount of restitution had been erroneously calculated. In addition, 11

12 defendant did not provide the PCR court with any evidence to support a claim that she will not be able to pay the restitution. Thus, defendant failed to establish that she was prejudiced by her attorney's error. Defendant further argues that the PCR judge erred by failing to conduct an evidentiary hearing on her PCR petition. We do not agree. An evidentiary hearing was not required because defendant had not presented a prima facie case for relief, the existing record was sufficient to resolve the claim presented, and the judge determined a hearing was not required. See State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). Affirmed. 12