STATE OF NEW JERSEY VS. CARDELL BOYD ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5372-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARDELL BOYD,
Defendant-Appellant.
_____________________________
Submitted June 25, 2019 – Decided September 17, 2019
Before Judges Rothstadt and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Accusation No. 13-07-2228.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Linda Anne Shashoua,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Cardell Boyd appeals from the denial of his petition for post-
conviction relief (PCR) without an evidentiary hearing. On appeal, defendant
argues that the PCR judge should have ordered an evidentiary hearing.
According to defendant, he established a prima facie case of ineffective
assistance of counsel (IAC) based upon his plea counsel's failure to adequately
advise him about Parole Supervision for Life (PSL), N.J.S.A. 2C:43-6.4, and her
failing to investigate defendant's cognitive limitations before advising him to
accept the plea offer. For the reasons that follow, we vacate the denial of his
petition and remand for an evidentiary hearing.
Defendant pled guilty to an Accusation that charged him with third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Pursuant to his plea
agreement, on November 1, 2013, the sentencing judge imposed a 270-day
period of jail time, required defendant to comply with the registration
requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23, and subjected defendant
to PSL.
Prior to entering his plea on July 24, 2013, defendant signed a plea
agreement containing a supplement that addressed PSL. By circling "yes" next
to each of the PSL-related questions, defendant confirmed that he knew PSL was
"in addition to any other sentence," "that upon release from incarceration [he
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would] be supervised by the Division of Parole for at least [fifteen] years and
[would] be subject to provisions and conditions of parole" that may prevent him
from living "in a home with minor children," that if he violated PSL he could be
incarcerated, and that he could be convicted for any violation of PSL, which
could result in an additional sentence being imposed for "up to [eighteen]
months."
During defendant's plea hearing, defense counsel confirmed that she "had
an opportunity to review the Plea Forms" and defendant "initialed each page and
signed the last pages of each section." The plea judge then reviewed the terms
of the plea agreement with defendant. The judge stated, among other things,
"[y]ou'd have to serve [PSL]" and confirmed that defendant would be placed on
PSL "immediately" after sentencing.
The judge also confirmed that defendant read the plea agreement, that it
reflected his plea "deal," and that its terms were "written accurately and
completely in the plea papers that [defendant] and [his] Attorney filled out." In
response to the judge's questioning, defendant acknowledged that he read
"through those questions very carefully and check[ed] all the answers." The
judge also confirmed with defendant that "after [his] Attorney went over
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everything with" defendant, he understood and signed the agreement. Defendant
also stated that he was satisfied with his lawyer's services.
Prior to being sentenced, defendant was evaluated at the Avenel Adult
Diagnostic and Treatment Center (the Center). During his evaluation, he stated
that he dropped out of school in the ninth grade but until then he attended regular
education classes. He also stated that he was previously medicated for a period
of time for depression and anxiety following an earlier arrest. The results of the
examination indicated that while defendant was not amenable to sentencing as a
sex offender, he was "testing, at best, in the 'Below Average' range of intellectual
ability." The report noted that "[n]either speech nor thought processes showed
evidence of loose associations, nor other symptomatology that would confirm
the presence of a psychologic thought disorder."
At sentencing, PSL was initially mentioned by the prosecutor who
clarified that defendant could not be sentenced to probation because he was
being placed on PSL. The only other reference to PSL was when the sentencing
judge stated defendant was "subject to [PSL]" as part of his sentence.
Defendant did not appeal from his conviction or sentence. However, in
July 2016 he filed his first petition for PCR. In his petition, defendant argued
that "the terms of PSL were not explained to [him]" and he "was not aware that
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programs such as Drug Court would be unavailable." A brief and amended
petition were later submitted on behalf of defendant in which he expanded upon
his earlier argument about plea counsel not "adequately" explaining PSL to him.
He also contended he was entitled to an evidentiary hearing and that his petition
was not procedurally barred.
In his amended petition, defendant also asserted that he was diagnosed
with a learning disability and attended special education classes while in school.
He certified that he had been diagnosed with various mental health disorders,
including depressive and anxiety disorders, post-traumatic stress disorder, and
antisocial personality disorder. He also verified that his plea counsel "advised
[him] that [he] had not paid her sufficient money for her to proceed to trial or to
conduct any investigations in [the] matter." She also allegedly advised him to
either accept the plea or proceed to trial with representation from the Public
Defender's Office.
As to his understanding about PSL, defendant stated the following:
Defense counsel never explained to me about [PSL].
She did not explain that it was a mandatory requirement
for the offense that I pled guilty to, and she did not
explain that it was one of the conditions of my plea
deal. She also did not explain PSL when going over the
plea form with me.
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I also did not understand at the time that I accepted the
plea deal the requirements or the implications of PSL.
The court never explained PSL in a way that I
understood. The court only said at the plea hearing that
"You'd have to serve parole supervision for life."
Therefore, I did not know at the time that I accepted the
plea deal that I would be subject to PSL. I learned that
I was subject to PSL on the day of sentencing. If I had
known that PSL was a condition of my plea deal I
would not have accepted it.
On December 15, 2017, the parties appeared before the PCR judge for oral
argument. After considering the parties' contentions, on January 11, 2018, the
judge denied defendant's petition for the reasons stated in a comprehensive
nineteen-page written decision he issued on the same date. In addressing the
first prong of the two-pronged test for PCR articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), and as adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987), the PCR judge considered defendant's
contentions about not being advised of PSL.
The judge cited to State v. Schubert, 212 N.J. 295, 308 (2012) and
recognized that "PSL is a direct consequence of a plea; therefore, a defendant
must be informed of such consequences." He distinguished defendant's situation
from that of the defendant in State v. J.J., 397 N.J. Super. 91, 100 (App. Div.
2007), who despite having signed a plea form disclosing PSL, was found to have
not been adequately informed about the effect of PSL that included a prohibition
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against the defendant living with "his new wife and her children." The judge
determined that defendant here did "not point to a specific consequence of PSL
that was not contemplated by the plea agreement, only that he did not know of
the existence of PSL as part of his plea agreement."
The PCR judge concluded defendant "was informed that PSL was a
condition of his plea" because "the record evidences that [it] was discussed with
defendant when he signed his plea form." In reaching that conclusion, the judge
relied upon defendant's circling the answers to the questions about PSL on the
plea form, his plea counsel's statement that she reviewed the plea form and
defendant initialed and signed it, the plea judge having told defendant he would
have "to serve [PSL]," and the fact that defendant confirmed the plea form was
accurate and that he read it and understood its contents. The judge also cited a
reference to PSL that was made during sentencing. The judge stated that
although "every minutia of [PSL] was not explained by the [plea] judge . . . [he
was] satisfied the [plea] judge engaged in sufficient inquiry to ensure that
defendant read and understood the terms of his plea and adequately discussed it
with his attorney."
The judge also found that defendant failed to meet the second prong of
Strickland, which required defendant to demonstrate there was reasonable
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probability that but for counsel's deficient performance, the outcome of the
proceedings would have been different. He concluded that plea counsel did not
commit any professional errors and noted that defendant failed to offer any facts
that established he suffered "legal prejudice" by accepting the plea. He found
the record showed that defendant entered into the plea agreement "knowingly,
intelligently, and voluntarily," and testified that he was satisfied with counsel's
representation. He concluded that defendant failed to establish a prima facie
case of IAC based on his allegations about PSL.
Turning to defendant's argument that counsel failed to investigate his
mental health, the judge observed that defendant did not provide any
documentation pertaining to his alleged mental health issues or learning
disability. He noted the Center's evaluation did not indicate that defendant had
any mental disorders or suffered from a diminished capacity that would impact
his ability to understand the proceedings. As such, he found that defendant's
allegations about counsel's failure to investigate also failed to meet the first
prong of Strickland. This appeal followed.
Defendant presents the following issue for our consideration in his appeal:
POINT ONE
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
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HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
INFORM HIM ADEQUATELY OF THE
REQUIREMENTS AND CONSEQUENCES OF
PAROLE SUPERVISION FOR LIFE, AND FAILING
TO CONDUCT ADEQUATE PRETRIAL
INVESTIGATION.
In support of his argument, defendant maintains that he established a
prima facie case of IAC because counsel failed to adequately advise him about
PSL and by failing to conduct a pretrial investigation into his intellectual
limitations. He also avers that the plea and sentencing judges did not give him
any information about PSL and merely asserted that he would be subject to it
and verified that he read the forms. Defendant contends that the PCR judge only
relied upon the plea forms and that defendant was informed at sentencing about
PSL in rendering his decision. We find defendant's contentions relating to not
being informed about PSL to have merit.
When a defendant's PCR petition is denied without an evidentiary hearing,
our review is de novo because claims of IAC generally give rise to legal issues.
State v. Harris, 181 N.J. 391, 419 (2004). "[I]t is within our authority 'to conduct
a de novo review of both the factual findings and legal conclusions of the PCR
court.'" State v. Reevey, 417 N.J. Super. 134, 147 (App. Div. 2010) (quoting
Harris, 181 N.J. at 421).
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Applying our de novo standard of review, we conclude that the PCR judge
incorrectly decided defendant's petition without conducting an evidentiary
hearing because there were no facts in the record establishing that plea counsel
ever discussed PSL with defendant and that neither the plea judge's nor the
sentencing judge's comments about PSL provide any information about the
consequences of PSL.
In order to prevail on a claim of IAC, defendant must establish both: (l)
counsel's performance was deficient and she made errors that were so egregious
that counsel was not functioning effectively as guaranteed by the Sixth
Amendment to the United States Constitution; and (2) the defect in performance
prejudiced defendant's rights to a fair trial such that there exists a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 687, 694.
The Strickland two-pronged analysis applies equally to convictions after
a trial or after a defendant pleads guilty. In the context of a PCR petition
challenging a guilty plea, the second Strickland prong is satisfied when a
defendant establishes that "there is a reasonable probability that, but for
counsel's errors, [he or she] would not have pled guilty and would have insisted
on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v.
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Nuñez-Valdéz, 200 N.J. 129, 139 (2009)). A defendant who claims ineffective
assistance of plea counsel must also show that "a decision to reject the plea
bargain would have been rational under the circumstances." Padilla v.
Kentucky, 559 U.S. 356, 372 (2010); see also State v. Maldon, 422 N.J. Super.
475, 486 (App. Div. 2011).
Merely raising a claim of PCR does not establish a prima facie claim of
IAC that would support granting a defendant an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant is entitled
to an evidentiary hearing "if he or she establishes a 'prima facie case in support
of post-conviction relief,' there are 'material issues of disputed fact that cannot
be resolved by reference to the existing record,' and a 'hearing is necessary to
resolve the claims for relief.'" State v. Rose, 458 N.J. Super. 610, 624 (App.
Div. 2019) (quoting R. 3:22-10). These facts must be viewed in the light most
favorable to the defendant. State v. Preciose, 129 N.J. 451, 462-63 (1992).
PCR petitions must be "accompanied by an affidavit or certification by
defendant, or by others, setting forth with particularity the facts that he wished
to present." State v. Jones, 219 N.J. 298, 312 (2014). "Even a suspicious or
questionable affidavit supporting a PCR petition 'must be tested for credibility
and cannot be summarily rejected.'" Id. at 314 (quoting State v. Porter, 216 N.J.
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343, 355 (2013)). There are "[c]ertain factual questions, 'including those
relating to the nature and content of off-the-record conferences between
defendant and [the] trial attorney,' [which] are critical to claims of ineffective
assistance of counsel and can 'only be resolved by meticulous analysis and
weighing of factual allegations, including assessments of credibility.'" Porter,
216 N.J. at 355 (quoting State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998)).
In his supporting affidavit, defendant contends that neither his attorn ey
nor the plea judge adequately advised him about PSL. As the PCR judge
acknowledged, defendant was entitled to be properly advised about PSL before
his plea was accepted.
"[T]he determination of whether defendant must be informed of certain
consequences of his plea turns on whether those consequences are 'direct or
penal,' in which case the defendant must be informed, or 'collateral,' in which
case defendant need not be informed." State v. Bellamy, 178 N.J. 127, 137
(2003) (quoting State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986)).
The consequences of PSL are penal in nature and as such, a defendant must be
informed of them. See N.J.S.A. 2C:43-6.4(b); State v. Perez, 220 N.J. 423, 441
(2015). A defendant may not fully understand "the parameters of [a] plea" if
neither the court nor counsel explains the ramifications of PSL. J.J., 397 N.J.
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Super. at 99-100. With more knowledge of the consequences of a plea, a
defendant can make a more informed decision regarding accepting the plea. Id.
at 100.
We have previously observed that before accepting a plea, a "court should
at least assure itself that defense counsel has discussed the matter with his client
and defendant understands the nature of community [or parole] supervision for
life as the functional equivalent of life-time parole." State v. Jamgochian, 363
N.J. Super. 220, 227 (App. Div. 2003). Specifically, "[i]f the trial court is aware
that a particular aspect of a penal consequence needs clarification then it should
take the time to explain further" particularly because life-long parole
supervision "can have a greater deleterious effect on the defendant than the
actual period of incarceration." Ibid. "Whereas the court need not explain every
possible consequence of a plea, it cannot simply utter a label such as '[PSL]
requirements.' Such a disclosure does not ensure that defendant fully
understands the parameters of his plea." J.J., 397 N.J. Super. at 99 (citation
omitted). The obligation to ensure that counsel has discussed PSL with a
defendant before he enters a plea, and defendant understands its consequences,
is not satisfied by "solely rely[ing] on a written plea form when taking a plea."
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State v. Williams, 342 N.J. Super. 83, 91 (App. Div. 2001) (citing State v.
Kovack, 91 N.J. 476, 484 n.1 (1982)).
Applying these principles, we conclude defendant established a prima
facie claim of IAC and was entitled to an evidentiary hearing on the issue of
whether he was adequately informed by counsel about the consequences of PSL
and if he was not, whether he would not have accepted the plea offer if he had
been properly advised.
We reach a different conclusion as to defendant's contentions about
counsel's failure to investigate his alleged cognitive impairments. We find
defendant's contention in that regard to be without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for
the reasons stated by the PCR judge. Suffice it to say, there was nothing in the
record to support defendant's claim as to this contention.
Affirmed in part; reversed in part and remanded for further proceedings
consistent with our opinion. We do not retain jurisdiction.
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