STATE OF NEW JERSEY VS. SHABBA Z. GREEN (16-03-0980, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3274-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHABBA Z. GREEN,
a/k/a SHABBA K. GREEN,
and ZIARE GREEN,
Defendant-Appellant.
_________________________
Submitted May 28, 2020 – Decided June 15, 2020
Before Judges Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-03-0980.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Shabba Z. Green appeals from a January 14, 2019 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
In 2015, defendant was arrested for robbing a juvenile at knife point in
East Orange. A grand jury indicted defendant for first-degree robbery, N.J.S.A.
2C:15-1, possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d),
and possession of a weapon under circumstances not manifestly appropriate,
N.J.S.A. 2C:39-5(d).
In 2016, defendant pled guilty to first-degree robbery, and pursuant to a
plea agreement, was sentenced as a second-degree offender. He received a six-
year prison sentence subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2, and five years of parole supervision. In his PCR petition, defendant
argued his plea counsel did not advise him he was subject to five years of parole
supervision, and instead he should have received three years of parole
supervision consistent with a second-degree robbery conviction. The PCR judge
rejected defendant's argument, and referencing defendant's plea form, noted the
following:
Defendant was asked . . . "Do you understand that
because you pled to these charges the Court must
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impose a five year term of parole supervision, and that
term will begin as soon as you complete the sentence of
incarceration?" Below it says, "First degree term for
parole supervision, five years. Second degree parole
supervision, three years." This defendant circled yes.
The judge concluded defendant did not demonstrate a prima facie case of
ineffective assistance of counsel because his "counsel could not have effectively
argued for three years, because by law statutorily . . . he pled guilty to a first
degree robbery he must have received and did receive the five years term of
parole supervision."
Defendant raises the following point on this appeal:
THE PCR COURT SHOULD HAVE GRANTED THE
DEFENDANT AN EVIDENTIARY HEARING ON
HIS PETITION FOR POST-CONVICTION RELIEF
BASED UPON HAVING MADE A PRIMA FACIE
SHOWING OF INEFFECTIVE ASSISTANCE OF
COUNSEL WHERE COUNSEL GAVE INCORRECT
ADVICE THAT HE WOULD RECEIVE THREE
YEARS OF PAROLE SUPERVISION RATHER
THAN FIVE YEARS WHEN PLEADING TO A
FIRST-DEGREE CRIME.
To succeed on a claim of ineffective assistance of counsel, a defendant
must meet the two-part test Strickland v. Washington, 466 U.S. 668, 687 (1984)
established, which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58
(1987). Under Strickland, a defendant first must show his or her attorney made
errors "so serious that counsel was not functioning as the 'counsel' guaranteed
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the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Counsel's
performance is deficient if it falls "below an objective standard of
reasonableness." Id. at 688.
A defendant also must show counsel's "deficient performance prejudiced
the defense." Id. at 687. He or she must establish "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. "A reasonable probability
is a probability sufficient to undermine confidence in the outcome" of the
proceeding. Ibid.We review a PCR court's decision to proceed without an evidentiary
hearing for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401
(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)). A
defendant is entitled to an evidentiary hearing if he or she presents a prima facie
case supporting PCR, the court determines there are material issues of fact that
cannot be resolved based on the existing record, and the court finds that an
evidentiary hearing is required to resolve the claims presented. R. 3:22-10(b);
see also State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).
Having considered the PCR judge's findings and having reviewed the
transcript of defendant's testimony at his plea hearing, we are convinced
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defendant has not established a prima facie case of ineffective assistance of
counsel. Before we address the plea proceedings, we note—as the PCR judge
did—that where a defendant pleads guilty to a first-degree NERA offense, but
receives a second-degree sentence, the parole supervision period remains five
years. N.J.S.A. 2C:43-7.2(c). Therefore, defendant could not receive a shorter
period of parole supervision.
Moreover, the transcript of the plea proceedings resolves any doubt that
defendant's attorney misled him, as noted in the following colloquy:
THE COURT: Do you understand that because you are
pleading guilty to a first degree robbery charge that
there is a period of parole ineligibility of [eighty-five
percent] of the sentence that applies to that charge?
THE DEFENDANT: Yes.
....
THE COURT: Do you understand also that once you
are released from custody that you will be subject to a
period of parole supervision for five years following
your release?
THE DEFENDANT: Yes.
Defendant also testified he was satisfied with his counsel's advice and did not
need more time to speak with him.
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Defendant was not entitled to an evidentiary hearing because he did not
demonstrate a prima facie case of ineffective assistance of counsel. The record
before us does not demonstrate that plea counsel committed any errors, let alone
ones which prejudiced the outcome in this case.
Affirmed.
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