Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
This is a case addressing a defendant’s claim that a) his attorney did not properly represent him during a criminal proceeding and subsequent plea. Specifically the defendant argued to the court his defense attorney told him he would get into ISP (Intensive Supervised Parole within 14-18 months after his plea and sentencing when in fact he was precluded from getting into ISP at all. The trial court held a full evidentiary hearing at heard testimony from the defense attorney. The defense attorney testified he would not have told the defendant he was ‘guaranteed’ to get into ISP after the 14-18 months, and there are no such guarantees. The Appellate Division reviewed the facts, Affirmed the trial court’s denial of Ineffective Assistance of counsel and outlined the current status of the case law. It provided:
“First, a defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel’s deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a “reasonable probability” that the deficient performance affected the outcome. Fritz, supra.
More importantly for many is the allegation of Ineffectiveness when there is no trial, but rather a plea. At that juncture, “When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel’s errors, the defendant would  have decided to forego the plea agreement and would have gone to trial.” State v. McDonald, 211 N.J. 4, 30 (2012) (emphasis added). More recently, we expressed what might appear to be at first blush a slightly different standard:
In determining a claim of ineffective assistance of counsel in a case in which a defendant pled guilty, “the issue is whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea . . . .” [State v. Smullen, 437 N.J. Super. 102, 108- 09 (App. Div. 2014) (quoting State v. Nunez- Valdez, 200 N.J. 129, 139-40 (2009)).]
On closer scrutiny, however, the standard remains the same. Whenever a guilty plea is involved, in order to prove the second prong of the Strickland/Fritz standard a defendant must demonstrate “‘that there is a reasonable probability that, but for counsel’s errors, [he] would not have pled guilty and would have insisted on going to trial.‘” Nunez-Valdez, supra, 200 N.J. at 139 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
In Smullen, defense counsel was unaware that the defendant’s guilty plea subjected him to community supervision for life, see N.J.S.A. 2C:43-6.4. Smullen, supra, 437 N.J. Super. at 105-09. Because there was no evidentiary hearing, we remanded the matter to the PCR court to conduct a hearing “to determine whether ‘there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'” Id. at 110 (quoting Nunez-Valdez, supra, 200 N.J. at 138) (emphasis added); see also State v. Agathis, 424 N.J. Super. 16, 23 (App. Div. 2012) (remanding for an evidentiary hearing to determine whether misinformation regarding the defendant’s ineligibility to obtain a firearms identification card because of his guilty plea “was a material consideration . . . in deciding whether to accept” the plea offer, and whether the defendant “would not have pled guilty if he had known”) (emphasis added); State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (remanding for evidentiary hearing as to whether the defendant was misinformed regarding civil commitment consequences of his guilty plea and whether “that misinformation le[d] him to plead guilty when he otherwise would have insisted on going to trial”) (emphasis added).
In this case, defendant has never asserted that, but for trial counsel’s erroneous advice regarding ISP eligibility, he would not have plead guilty and insisted on going to trial. Defendant had the opportunity to assert such a claim, both in his petition and during the evidentiary hearing. He chose not to do so. Indeed, even now, defendant does not seek to vacate his conviction; he only seeks a remand so he can be resentenced, presumably on more lenient terms. There is no reason to resentence defendant. Judge DeLury imposed a perfectly legal sentence that fully complied with defendant’s expectations in accordance with the plea bargain.
Moreover, Judge DeLury specifically credited trial counsel’s representation that he never promised defendant a favorable result from the ISP application. In other words, defendant may have believed that he was eligible for the program, or that he had a reasonable prospect for admission. But, when he plead guilty, defendant was not assured to a certainty, nor could he be, that he would be admitted.
The full case can be accessed here.