STATE OF NEW JERSEY VS. MICHAEL SHANNON (07-10-0913 AND 13-05-0406,…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5888-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL SHANNON,

     Defendant-Appellant.
__________________________

                   Submitted September 30, 2020 – Decided October 9, 2020

                   Before Judges Fisher and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Docket Nos. 07-10-
                   0913 and 13-05-0406.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Jennifer    Webb-McRae,        Cumberland       County
                   Prosecutor, attorney for respondent (Andre R. Araujo,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Michael Shannon appeals the order denying his application for

post-conviction relief (PCR), arguing:

            THE PCR COURT [1] ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING AS
            HIS PLEA WAS NOT KNOWINGLY GIVEN
            BECAUSE PRIOR COUNSEL MISADVISED HIM
            REGARDING THE APPLICATION OF HIS JAIL
            CREDITS.

Because defendant presented a prima facie case that his counsel misadvised him

as to the jail credits he would receive, see State v. Preciose, 129 N.J. 451, 462

(1992), we reverse and remand for an evidentiary hearing.

      Defendant pleaded guilty to three violations of probation (VOPs) and two

indictments on a single day. The jail credits awarded on two of those matters

are pertinent to this appeal. Defendant received credit for 463 days when

sentenced on two gun-possession charges to an aggregate five-year prison term

with thirty-six months of parole ineligibility under 13-05-0406. He received

credit for 687 days when sentenced to a concurrent four-year term with thirty

months of parole ineligibility for violating Drug Court probation on a school -

zone drug charge under 07-10-0913.




1
   Different judges presided at defendant's plea hearing, sentencing, motion
hearing to correct jail credits and PCR hearing.
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                                         2
      He argues his ineffective plea counsel misadvised him he would receive

687 days of jail credit on all matters and would not have pleaded guilty had

counsel advised he would receive only 463 days credit on the controlling

sentence.

      When the plea judge asked about the sentences he faced on both matters,

defendant accurately answered, and, in reply to the judge's next question,

explained his understanding of a concurrent sentence. Defendant then told the

judge, "[t]he only term I'm really looking at is the five with a three. The second

one is running along[.]" The judge responded: "Well, that might be a little

different in that because depending on the credits, but you're correct. And even

the new case [the gun charges] is going to run concurrent with your [D]rug

[C]ourt alternative sentence; right?" Defendant responded affirmatively and

added, "[t]hat's what's going to aggregate my credits . . . as well." The judge

did not respond and proceeded to take the pleas.

      When given the opportunity to allocute at sentencing, defendant inquired

about jail credits on the aggregate sentence:

                   I just want to ask that when [the plea judge] was
            here . . . he actually had me give a breakdown to him of
            what I understood about the way I'm getting sentenced
            . . . which would mean that would be an aggregate
            sentence. My VOP, I guess, would run aggregate to the
            five do three. That's the way [the plea judge] . . . made

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                                        3
            me state it on the record[.] So I explained to him that
            was the thing for the credits for time served since with
            aggregated sentence the credits for time served were to
            merge from my VOP from drug court, merge with the
            credits I have for the gun charges[.]

      The ensuing colloquy between both counsel and the sentencing judge

focused on the concurrent prison terms negotiated under the plea agreement,

during which the sentencing judge stated he was going to award defendant

"credit for time served as calculated in the presentence report" (PSR) on the gun

charges.   After defense counsel clarified those credits totaled 463 days,

defendant said he was "just making sure that from what [he] understood that this

would be an aggregate term, an aggregate sentence."

      Defendant's counsel interjected:

                   [W]e explained to defendant everything is
            running concurrent. . . . When he gets to [S]tate prison
            we're hoping that the State prison is going to treat this
            as . . . one aggregate sentence. That he keeps asking
            me that and I keep telling - - I mean we've been through
            this multiple times before multiple judges. But the
            aggregate is really a five do three.
                   And the credit on the VOP drug court is actually
            a lot. I mean on separate indictments he's looking [at]
            really over 600 days.

When the judge clarified the credits were 623 days, defendant's counsel

responded, "Yes. 687 on [the Drug Court VOP]. 687." He repeated that he



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                                         4
hoped it would "be seen as an aggregate sentence." The judge expressed his

intention that all sentences were concurrent.

      Reviewing this matter de novo because the PCR court did not conduct an

evidentiary hearing, State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016),

and viewing "the facts in the light most favorable to defendant," Preciose, 129

N.J. at 463, we conclude the record supports defendant's contention that he

established a prima facie case warranting an evidentiary hearing.

      Although it was made clear defendant's sentences ran concurrent,

defendant's contention that he was advised he would be credited with 687 days

was never belied by the farrago of information regarding aggregate sentences

and jail credits. The plea judge did not address defendant's belief that concurrent

sentences would "aggregate [his] credits," and that issue was muddled by

defense counsel's comments that defendant was "looking [at] over 600 days" of

jail credit—quantified at 687 days—after stating defendant's aggregate sentence

was "five do three." The credits pertained to the Drug Court VOP, but the

controlling sentence was meted out on the gun charges which carried only 463

days of credits.

      During his pro se motion to correct jail credits, defendant explained his

defense counsel showed him "different sets of times that said that [he] would all


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                                        5
get them because [his] time would be aggregate." Defendant also described

hearings on three consecutive days before Judge Malestein when he was told by

the judge the credits would be, as the motion judge described, "awarded in the

aggregate." He also told the motion judge that "lawyers out there" listened to a

CD recording of a plea hearing before Judge D'Arrigo; the lawyers told

defendant he "would be awarded [credits] . . . for X amount of dollars which

[defendant] didn't have, so [he] couldn't do it." Defendant asserts in his merits

brief that he did not appear before Judge Malestein on either of the two

indictments in issue, and no proceedings before Judge D'Arrigo appear in the

record. But as the State points out in its merits brief, during a proceeding before

the sentencing judge some five months prior to sentencing, defendant's counsel

told the judge: "We counted all his credits one day before Judge Malestein. I

think they've done it at least three times now for him." We discern defendant

was not present at that proceeding, and it is not clear what credits were

discussed, when they were discussed, and who "they" were that discussed the

credits with defendant.

      An evidentiary hearing is thus required to determine if defendant's

repeated inquiries about aggregate jail credits were engendered by any

misadvice from his counsel. On remand, the PCR judge can explore that issue


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                                        6
and review any proceedings—records of which were provided to us and those

which were not—at which the jail-credit issue was discussed.

      We do not express any opinion about the merits of defendant's claim. We

recognize the sentencing judge told defendant he would receive the credits set

forth in the PSR which correctly set forth the jail credits for each indictment;

that defendant's counsel represented to the sentencing judge the "[c]redit appears

correct"; and when asked by counsel if he agreed, defendant answered, "yes."

The sentencing judge, however, never asked defendant or his counsel if

defendant had reviewed the PSR with counsel. We also note that the sentencing

judge announced on the record the correct credits on each indictment. And,

defendant told the motion judge "the lady that was on the side 2 came alongside

[him], sat next to [him] while [he] was in custody and would break down the

breakdown to [him]," and explained when the judge "sends it over" defendant

would be "awarded" because he had "a certain amount of days to look at the

[PSR]" which had credits of "687 on another and 463 on another." We leave to

the PCR judge to determine what defendant was told by counsel and what


2
   Defendant mentioned "the lady" after speaking about a proceeding before
Judge Malestein. Defendant was not clear if "the lady" spoke with him in that
judge's courtroom. Nor is the identity of the lady or her capacity revealed in the
record.


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                                        7
defendant knew about the quantity of his jail credits and how they would be

applied.

      We also leave consideration of the Strickland/Fritz prongs,3 including

whether defendant demonstrates "there is a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have insisted on

going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also State v.

DiFrisco, 137 N.J. 434, 457 (1994).

      Reversed and remanded for proceedings consistent with this opinion.

Unless defendant was released after serving the maximum sentence and does not

face the possibility of reincarceration on these matters, we direct the evidentiary

hearing be conducted even if defendant was released on parole; jail credits will

still be in issue if he is returned to State prison on either or both of these two

charges. We do not retain jurisdiction.




      3
          To establish a PCR claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test formulated 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), first by "showing that counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed . . . by
the Sixth Amendment," then by proving he suffered prejudice due to counsel's
deficient performance, Strickland, 466 U.S. at 687, 691-92; see also Fritz, 105
N.J. at 52. Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome. Fritz, 105 N.J. at 58.
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