STATE OF NEW JERSEY VS. REGINALD I. EAFORD-MOSES (15-03-0240, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3891-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD I. EAFORD-MOSES,
a/k/a REGINALD EAFFORD,
REGINALD I. EAFORDMOSES
and REGINALD EAFORD,
Defendant-Appellant.
_____________________________
Submitted February 10, 2021 – Decided March 5, 2021
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 15-03-0240.
Joseph E. Krakora, Public Defender, attorney for
appellant (Dianne Glenn, Designated Counsel, on the
brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Albert Cernadas, Jr., Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Reginald I. Eaford-Moses appeals from an order denying his
post-conviction relief (PCR) petition which sought the reversal of his conviction
in Union County for second-degree eluding, N.J.S.A. 2C:29-2(b), and a motor
vehicle offense, driving while suspended, N.J.S.A. 39:3-40. He argues the court
erred by finding his petition was barred under Rule 3:22-4(a) because his claim
the sentencing court failed to properly award jail credits could have been raised
on direct appeal. He also contends the court erred by failing to hold an
evidentiary hearing on his claim that his plea counsel was ineffective by
misinforming him about the jail credits the court would award at sentencing.
Unpersuaded by defendant's arguments, we affirm.
I.
As the result of a November 2014 incident during which it is alleged
defendant fled in his vehicle after it was stopped by the police, a Union County
grand jury charged defendant in a March 2015 indictment with second-degree
eluding, N.J.S.A. 2C:29-2(b); fourth-degree aggravated assault on a police
officer, N.J.S.A. 2C:12-1(b)(5); third-degree exhibiting false identification,
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N.J.S.A. 2C:21-2.1(c); and third-degree hindering apprehension, N.J.S.A.
2C:29-3(b)(4). Defendant was also charged with three motor vehicle offenses. 1
In October 2015, defendant was charged in Essex County with a violation
of probation on a prior conviction for third-degree eluding, N.J.S.A. 2C:29-2(b).
Following a determination defendant violated probation, on June 27, 2016, the
court resentenced defendant to a five-year prison term on the third-degree
eluding charge.2 The court awarded defendant 483 days of jail credit and 35
days of prior service credit on the sentence imposed. 3
1
Defendant was charged with driving while suspended, a third offense, N.J.S.A.
39:3-40; driving while on a cellphone, N.J.S.A. 39:4-97.3; and reckless driving,
N.J.S.A. 39:4-96.
2
The judgment of conviction on the Essex County charge is not included in the
record on appeal. We discern the facts related to the conviction from the PCR
court's decision and the parties' respective briefs on appeal, all of which reflect
that the court imposed a five-year custodial term on the third-degree eluding
charge.
3
As noted by the PCR court, in his amended verified PCR petition, defendant
erroneously asserted the court awarded 518 days of jail credit and 25 days of
prior service credit when he was resentenced in Essex County. The original
judgment of conviction on the resentencing incorrectly awarded those jail and
prior service credits, but it was later amended to award defendant 483 days of
jail credit and 35 days of prior service credit. On appeal, defendant does not
dispute that the amended judgment of conviction in the Essex County matter, as
described by the PCR court, accurately sets forth the jail and prior service credits
awarded at his resentencing on the third-degree eluding charge.
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Two months later, defendant negotiated a plea agreement with the State
resolving the charges in the Union County indictment. On August 22, 2016,
defendant pleaded guilty to second-degree eluding and a motor vehicle offense,
driving while suspended. In exchange for the pleas, the State recommended that
defendant receive a sentence not to exceed six years on the eluding charge,
concurrent to any sentences defendant received for state and federal convictions
in other matters.4 The plea agreement was contingent on the court including
language in the judgment of conviction stating, "[T]his sentence will be served
in . . . federal custody."
The plea agreement's terms were set forth in a written plea form. In
response to questioning by the court, defendant testified "[t]he only agreement"
he had with the State "is what is on [his] plea form." The plea form required
that defendant "[l]ist any other promises or representations that [were] made
by . . . [his] defense attorney, or anyone else as a part of this plea of guilty."
Defendant did not list any promises or representations by his counsel concerning
the award of jail, prior service, or gap time credits at sentencing. The plea
agreement, as explained by the court and reflected on the plea form, did not
4
It was also agreed defendant would receive the minimum mandatory sentence
on the driving-while-suspended charge, and that sentence would run concurrent
to the sentence on the eluding charge.
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include any promises, commitments, or conditions concerning credits defendant
would receive at sentencing.
During the plea proceeding, defendant testified he read and reviewed the
plea form with his counsel, it accurately set forth the plea agreement, and he
understood and correctly answered all the form's questions. The court explained
it would include language in the judgment of conviction allowing defendant to
serve his sentence in federal custody, but that it did not have authority over
defendant's service of his sentence on his federal court convictions. The court
informed defendant that if federal authorities did not allow him to serve his state
court sentence during his federal sentence, he would be required to first
complete his state court sentence on the second-degree eluding charge before
beginning service of his federal sentence. The court explained those
circumstances would result in defendant's service of consecutive sentences on
his state and any federal convictions, and that the occurrence of such
circumstances would not provide grounds for the withdrawal of defendant's
pleas. Defendant testified that he understood and wanted to plead guilty to the
second-degree eluding and driving-while-suspended offenses.
Defendant testified concerning his commission of the offenses, and the
court determined he provided a factual basis supporting his guilty pleas to
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second-degree eluding and driving while suspended. The court questioned
defendant about his decision to waive his right to appear at sentencing, and
found the waiver was knowing and voluntary. The court accepted defendant's
pleas of guilty and scheduled his sentencing.
At the September 30, 2016 sentencing, the court noted defendant had
eighteen prior convictions for indictable offenses, and found aggravating factors
three, the risk defendant will commit other offenses, N.J.S.A. 2C:44-1(a)(3); six,
the nature and extent of defendant's prior criminal history, N.J.S.A. 2C:44 -
1(a)(6); and nine, the need to deter defendant and others from violating the law,
N.J.S.A. 2C:44-1(a)(9). The court found the aggravating factors substantially
outweighed the non-existent mitigating factors, and it imposed sentence in
accordance with the plea agreement. The court sentenced defendant to an
aggregate six-year custodial term, concurrent but not conterminous with the
sentences on defendant's other state and federal convictions. The court awarded
defendant 232 days of jail credit and 94 days of gap time credit. Defendant did
not appeal from his conviction and sentence.
In June 2018, defendant filed a pro se PCR petition challenging his Union
County conviction for second-degree eluding and requesting that the jail credits
awarded on his Essex County resentencing be "add[ed]" to the judgment of
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conviction for second-degree eluding. He also vaguely claimed his Union
County plea counsel was ineffective by failing to "mention[]" the "conditions
on [sic] the plea . . . during sentencing" and "never rais[ing] the issue."
In an amended petition, defendant claimed his plea counsel was
"deficient" by: advising defendant the court in Union County would award him
the same 483 days of jail credit and 35 days of prior service credit on the second-
degree eluding charge that the court in Essex County awarded when it
resentenced defendant on the third-degree eluding charge; and advising
defendant he would also receive gap time credit on his Union County sentence.
Defendant asserted plea counsel said the award of those credits would make his
sentences in the Union and Essex County matters "fully concurrent and not
partially consecutive as they are now." Defendant further claimed his plea
counsel in the Union County matter provided ineffective assistance by failing to
make "the [c]ourt aware of the sentencing [on] the Essex County [violation of
probation]" when the court sentenced defendant for second-degree eluding. 5
5
In his amended petition, defendant also alleged the New Jersey Department of
Corrections erred by failing to apply the jail credits on the two sentences
"concurrently" and by instead applying the jail credits "consecutively." We do
not address the claim, or offer any opinion on it, because defendant does not
reprise it on appeal.
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In his amended petition, defendant sought an amendment of his judgment
of conviction in the Union County matter to reflect the same sentencing date as
in the Essex County case. He also sought an award of the same jail and prior
service credits in the Union County case that he received in the Essex County
case, so that the sentences are what he characterized as "fully concurrent."
After hearing argument on defendant's petition, the court issued a written
statement of reasons explaining its denial of the petition without an evidentiary
hearing. The court found defendant's claim the sentencing court erred by failing
to properly award jail credits on the second-degree eluding charge was barred
by Rule 3:22-4(a) because the jail credit award could have been challenged on
a direct appeal. The court further explained that, as a matter of law, defendant
was awarded all the jail and gap time credits to which he was entitled when he
was sentenced on the second-degree eluding charge.
The court also found defendant failed to sustain his burden of establishing
a prima facie claim of ineffective assistance of counsel under the standard
established in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted
by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The court found
defendant did not make a prima facie showing plea counsel's performance was
deficient because defendant's factual claims constituted bald assertions
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untethered to any affidavit or certification. The court also found defendant's
claims about plea counsel were undermined by defendant's testimony during the
plea proceeding that the plea form set forth all the conditions of his plea
agreement and no other promises were made to him other than those listed on
the plea form. The court further observed that the plea form makes no mention
of jail credits. The court noted that to establish a prima facie case under the
Strickland standard where the conviction results from a plea, a defendant must
demonstrate "that, 'but for counsel's errors, he would not have pled guilty and
would have insisted on going to trial.'" See Hill v. Lockhart, 474 U.S. 52, 59
(1985).
Defendant appeals from the court's order denying the PCR petition
without an evidentiary hearing. He offers the following arguments for our
consideration:
POINT ONE
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT'S CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL WAS BASED UPON
CONVERSATIONS WHICH WERE OUTSIDE THE
RECORD AND COULD ONLY BE RESOLVED
WITH THE TRIAL ATTORNEY'S TESTIMONY.
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POINT TWO
THE TRIAL COURT ERRED IN ITS
DETERMINATION THAT DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF WAS
BARRED BECAUSE THE ISSUES SHOULD HAVE
BEEN BROUGHT ON DIRECT APPEAL.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed
questions of fact and law. Id. at 420. Where, as here, an evidentiary hearing
has not been held, it is within our authority "to conduct a de novo review of both
the factual findings and legal conclusions of the PCR court." Id. at 421. We
apply these standards here.
In Strickland, the Supreme Court adopted a two-pronged test for
determining a PCR claim based on the alleged ineffective assistance of counsel.
466 U.S. at 687. First, a petitioner must show counsel's performance "fell below
an objective standard of reasonableness" and "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Id. at 687-88. Second, a "defendant must show that the
deficient performance prejudiced the defense." Id. at 687. There must be "a
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reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694.
To satisfy the second prong of the Strickland standard where a defendant
seeks to set aside a conviction based on a guilty plea, he or she must also
"convince the court that a decision to reject the plea bargain" and proceed to
trial "would have been rational under the circumstances." State v. Maldon, 422
N.J. Super. 475, 486 (App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S.
356, 372 (2010)); see also State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009).
That determination must be "based on evidence, not speculation." Ibid.Defendant does not contend the sentencing court erred in its determination
of the jail and gap time credits it awarded on defendant's sentence for second-
degree eluding. We independently find no basis to conclude the sentencing court
erred in awarding jail and gap time credits when it sentenced defendant on the
second-degree eluding charge. 6 Defendant concedes he was ineligible to receive
the identical jail and gap time credits on his sentence for the second-degree
eluding charge in Union County that he received in Essex County on his
resentencing on the third-degree eluding offense.
6
In its written statement of reasons, the PCR court provided a detailed
explanation of the bases for the sentencing court's award of jail and gap time
credits on the second-degree eluding charge.
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Defendant instead contends plea counsel's performance was deficient
because counsel misinformed him that he would receive the same jail and prior
service credits that he received on his Essex County sentence—518 days in
total—when he was sentenced in Union County on the second-degree offense.
Defendant claims his plea counsel's incorrect advice to the contrary constitutes
deficient performance under Strickland's first prong.
We reject the PCR court's finding that defendant's assertions about plea
counsel's alleged provision of incorrect advice constituted bald assertions that
did not support defendant's petition. See generally State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999) (explaining "bald assertions" are insufficient
to sustain a defendant's burden of establishing a prima facie case of ineffective
assistance of counsel under the Strickland standard). Although the court
correctly recognized factual assertions supporting a prima facie case of
ineffective assistance of counsel must be supported by an affidavit or
certification based on personal knowledge, or other competent evidence, see R.
3:22-10(c); see also State v. Jones, 219 N.J. 298, 312 (2014), it erred by finding
defendant's factual assertions were not adequately supported. Defendant's
factual claims are detailed in his amended petition, which he verified based on
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his own "personal knowledge" as "true and correct."7 For purposes of assessing
the adequacy of defendant's effort to demonstrate a prima facie claim of
ineffective assistance of counsel, the court should have accepted defendant's
factual assertion that plea counsel provided erroneous representations
concerning the jail and prior service credits defendant would receive when he
was sentenced on the second-degree eluding charge. See State v. Preciose, 129
N.J. 451, 462-63 (1992) (explaining a court considering a PCR petition "should
view the facts in the light most favorable to a defendant to determine whether a
defendant has established a prima facie claim").
The court's error, however, does not require reversal of its denial of
defendant's petition. We need not consider or determine, as the PCR court did,
whether defendant's claims about his counsel's alleged errors are undermined by
the plea proceeding record or sufficiently establish constitutionally deficient
performance by plea counsel. "Although a demonstration of prejudice
constitutes the second part of the Strickland analysis, courts are permitted
7
In the PCR court's statement of reasons, it states defendant's amended petition
includes an "unsigned and undated [v]erification." The record on appeal,
however, shows the amended petition was supported by a verification defendant
signed and dated on December 15, 2018. The State does not dispute the signed
and dated verification included in defendant's appendix on appeal was submitted
to the PCR court in support of defendant's petition.
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leeway to choose to examine first whether a defendant has been prejudiced, and
if not, to dismiss the claim without determining whether counsel's performan ce
was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012)
(citations omitted). Here, defendant failed to present any evidence addressing
the second prong of the Strickland standard.
In his amended petition providing the alleged facts supporting his
ineffective assistance of counsel claim, defendant did not demonstrate there is a
reasonable probability that but for his counsel's alleged errors, he would have
rejected the plea offer and proceeded to trial. See Maldon, 422 N.J. Super. at
486. Indeed, defendant's amended petition and brief on appeal do not include
any facts, evidence, or argument addressed to Strickland's "second, and far more
difficult, prong." Preciose, 129 N.J. at 463.
Defendant also did not present any evidence that but for his counsel's
alleged errors, it would have been rational for him to forego the benefits of the
plea agreement and proceed to trial. Maldon, 422 N.J. Super. at 486. Without
such evidence, defendant did not satisfy Strickland's second prong, and, for that
reason alone, the PCR court correctly concluded defendant did not establish a
prima facie case of ineffective assistance of his plea counsel. See Strickland,
466 U.S. at 700 (explaining a failure to establish both prongs of the Strickland
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standard requires denial of a PCR petition); see also State v. Nash, 212 N.J. 518,
542 (2013) (same).
Defendant's failure to present any evidence he was prejudiced under the
second prong of the Strickland standard required the denial of his petition for
PCR. Strickland, 466 U.S. at 700. Similarly, defendant's failure to establish the
second prong of the standard required the court's denial of his request for an
evidentiary hearing. See, e.g., Preciose, 129 N.J. at 462 (explaining an
evidentiary hearing is not required where a defendant does not establish a prima
facie case of ineffective assistance of counsel); see also R. 3:22-10(b) (providing
in part that "[a] defendant shall be entitled to an evidentiary hearing only upon
the establishment of a prima facie case in support of post-conviction relief").
It is unnecessary to address in detail defendant's claim the court erred by
finding his petition was barred by Rule 3:22-4(a) because his claim the
sentencing court erred by failing to properly award jail credits could have been
raised on direct appeal. The issue is moot because defendant does not argue on
appeal, as he somewhat confusingly suggested in his PCR petition, that the
sentencing court erred in its award of jail and gap time credits. The PCR court
correctly determined that such a claim, to the extent it might reasonably have
A-3891-18
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been discerned from defendant's submissions, could have been asserted in a
direct appeal and therefore is barred under Rule 3:22-4(a).
On appeal, defendant argues the sentencing court correctly awarded jail
and gap time credits on his sentence and claims only that he is entitled to PCR
because his plea counsel provided erroneous advice about the jail and gap time
credits the court would award at sentencing. The PCR court did not determine
defendant's claim about plea counsel's alleged ineffective assistance was barred
under Rule 3:22-4(a), and, for the reasons noted, we are convinced the PCR
court correctly decided that claim on the merits.
Any argument presented by defendant that we have not expressly
addressed is without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed.
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