NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Abdus Malik appeals from a December 4, 2013 order denying his petition for post-conviction relief (PCR). We affirm.
On September 4, 2008, defendant was incarcerated on a charge of first-degree murder, N.J.S.A. 2C:11-3a(1). Prior to his indictment on that charge, a Camden County grand jury charged defendant in Indictment No. 08-12-3736 with a number of drug offenses, including third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. Subsequently, the grand jury charged defendant in Indictment No. 09-02-747 with additional drug offenses, including third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. On April 1, 2009, the grand jury charged defendant in Indictment No. 09-04-1161 with first-degree murder, N.J.S.A. 2C:11-3a(1), and other offenses related to that incident. Defendant remained incarcerated during this entire period.
On October 13, 2009, defendant pled guilty to the two counts of possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, as charged in Indictments Nos. 08-12-3736 and 09-02-0747. In return for defendant's plea, the State agreed to recommend concurrent seven-year sentences on the drug offenses, with three-and-one-half years of parole ineligibility. The sentences would also run concurrent to a four-year sentence defendant was serving on two violation of probation charges.
The parties were not able to resolve the outstanding first-degree murder charge at the time of the October 13, 2009 plea, and the State continued to seek a minimum sentence of twenty-four years for this offense. However, the State agreed to recommend that any sentence subsequently imposed on the murder charge should be concurrent to the sentence imposed for the drug offenses involved in the October 13, 2009 plea. All of the other charges set forth in the two CDS indictments were to be dismissed.
On December 4, 2009, Judge Irvin J. Snyder sentenced defendant on the two drug charges in accordance with the plea agreement. The judge also granted defendant 456 days of jail credit from the date of his arrest on the murder charge, September 4, 2008, to the day before his sentence on the drug offenses, December 3, 2009.
Defendant's attorney continued to negotiate with the State in an attempt to resolve the murder and related offenses charged in Indictment No. 1161-04-09. Based upon defendant's attorney's efforts, the State agreed, on January 3, 2011, to amend the first-degree murder charge to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. In return for his guilty plea to the amended charge, the State agreed to recommend that defendant be sentenced to ten years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years of parole supervision upon his release. This sentence would run concurrently to the sentence defendant was serving for the drug offenses involved in Indictment Nos. 08-12-3736 and 09-02-0747. The remaining counts of Indictment No. 09-04-1161 were to be dismissed.
At the time of the plea, defendant asked Judge Snyder about the jail credits he would receive. The judge assured defendant that, although the total credits had not yet been calculated, defendant would receive "[a]ll lawful jail credits[.]" Defendant's attorney also stated he had advised defendant "that the law is what dictates . . . what credits are available and that I am going to make sure along with [the judge] and the prosecutor that my client gets every single day of credit that he's lawfully allowed to have."
On March 25, 2011, Judge Snyder sentenced defendant in accordance with the plea agreement. The judge determined that defendant was entitled to 457 days of jail credit between September 4, 2008, the date of defendant's arrest on the murder charge, and December 4, 2009, the date he began serving his sentence on the drug charges. The judge stated that, although defendant was already serving a State prison sentence, he would grant defendant an additional eighty-one days of jail credits, over the State's objection, for the period between January 3, 2011, the date defendant pled to the aggravated manslaughter charge, and March 24, 2011, the date before his sentence on that charge. Thus, defendant received eighty-one more days of jail credit than he was legally eligible to receive under State v. Hernandez, 208 N.J. 24, 50 (2011) (holding that "once the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8").1
Defendant filed an appeal of his sentence, and the matter was listed for consideration on an Excessive Sentence Oral Argument calendar. However, defendant withdrew this appeal. State v. Malik, No. A-0684-11 (App. Div. April 9, 2012).
On May 7, 2012, however, defendant filed a petition for PCR. In his petition, defendant asserted that his attorney was ineffective because he failed to assure that defendant received additional jail credits for the entire period between the date of defendant's sentence on the drug offenses and the date of his sentence on the aggravated manslaughter charge.
On December 4, 2013, Judge Snyder rejected defendant's arguments in a comprehensive fourteen-page written opinion. Judge Snyder, who had presided over the entire matter, found that defendant was always advised by the court and his attorney that he would receive all of the jail credits to which he was legal entitled, no more and no less. The judge stated:
[Defendant's] arguments are lacking. [Defendant] has failed to establish that [his] counsel was deficient. [Defendant] received nothing less than all the lawful jail credits he was entitled, as the plea agreement described. [Defendant] was originally incarcerated on September 4, 2008, when he was picked up on the homicide charge. While awaiting disposition on that charge, [defendant] was indicted on separate drug charges. Thus, between September 4, 2008 and December 4, 2009 [defendant] was entitled to 457 days — applied to both the drug sentence as well as any subsequent sentence on the homicide charge.
At sentencing [on the aggravated manslaughter charge, defendant] received 81 extra days of jail credit. This [c]ourt determined that since bail was revoked on the homicide charge on January 3, 2011, all of the time confined between that date and the sentencing date, March 25, 2011, applied as jail credit. This Court recognized that these extra 81 days were granting [defendant] a liberal and generous reading of the statute. As such, [defendant] was awarded a total of 538 days of jail credit— 81 days more than he was actually entitled to. Since [defendant] was not legally entitle[d] to anything more than he received, he clearly was not prejudiced when he received an extra 81 days. While the State still maintains that this is not lawful jail credit, [defendant] most certainly benefited from this [c]ourt's decision, and was not prejudiced.
In rejecting defendant's argument that he should have nevertheless received additional jail credits, the judge found that the plea form clearly indicated that defendant would receive "all lawful jail credits" and that this was exactly what he was granted. The judge noted that defendant's attorney had "fought diligently" for his client and, through his efforts, was able to persuade the State to modify its plea recommendation from a twenty-four-year sentence for first-degree murder to the minimum ten-year sentence for first-degree aggravated manslaughter. Thus, even though defendant was not legally entitled to any additional jail credits, Judge Snyder held that defendant "absolutely benefited from the plea offer of 10 years imprisonment, 14 years less than the original [offer] of 24 years. As such, [defendant] was not prejudiced by counsel's performance. Instead, [defendant] clearly benefit[]ed." This appeal followed.
On appeal, defendant raises the following contention:
POST-CONVICTION RELIEF SHOULD BE GRANTED BECAUSE THE PCR COURT MISAPPLIED ITS DISCRETION IN FAILING TO CREDIT THE DEFENDANT WITH ADDITIONAL TIME SERVED OR, IN THE ALTERNATIVE, THIS CASE SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
We have considered defendant's contention in light of the record and applicable legal principles and conclude that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Snyder in his well-reasoned written opinion. We add the following brief comments.
When petitioning for PCR based on a claim of ineffective assistance of counsel, a defendant must meet both prongs of the two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (stating that a defendant must establish (1) his or her counsel's performance was deficient and he or she made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he or she was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S.Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S.Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012).
There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Here, there is nothing in the record to support defendant's contention that his attorney was ineffective. Defendant's attorney advised defendant that he would ensure defendant received all the jail credits due him, and that is exactly what occurred. As Judge Snyder found, no representation was ever made that defendant would receive more than the 457 days of jail credit required under Hernandez, supra. In spite of that, defendant's attorney persuaded the judge to grant defendant an additional eighty-one days of jail credit over the State's objection. Thus, defendant's attorney was clearly effective with regard to the determination of jail credits.
Moreover, even if defendant's attorney or the court had incorrectly advised defendant he would receive additional credits, Judge Snyder correctly found that this would not have made a difference in defendant's decision to enter the plea. Defendant was facing a first-degree murder charge, together with a potential thirty-year sentence. Through his attorney's efforts, the State modified its plea offer from twenty-four years to a ten-year sentence for aggravated manslaughter, subject to NERA. Under those circumstances, the judge properly held that, even if the record could support a finding that defendant's attorney gave him incorrect advice concerning jail credits, there was no reasonable probability that this would have affected defendant's decision to accept this very generous plea offer.
Affirmed.
