STATE OF NEW JERSEY VS. RAHEEM CLAY (07-05-1578, ESSEX COUNTY…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3232-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAHEEM CLAY, a/k/a
HASSAN BYNUM, BYNUM
HASSON, RAHEEM A. CLAY,
RAHEEM M. CLAY, TEREK
CLAY, HASSAN T. FITCH,
HASSAM FITCH, HASSAN
TYRICK FITCH, and
HASSAN PERRY,

     Defendant-Appellant.
__________________________

                   Submitted September 29, 2020 – Decided October 9, 2020

                   Before Judges Sabatino and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 07-05-1578.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Anderson D. Harkov, Designated Counsel,
                   on the brief).
            Theodore N. Stephens II, Acting Essex County
            Prosecutor, attorney for respondent (Barbara A.
            Rosenkrans, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant appeals from the January 7, 2019 Law Division order denying

his petition for post-conviction relief (PCR) following an evidentiary hearing.

On appeal, defendant raises the following single point for our consideration:

            THE [PCR] COURT ERRED WHEN IT FAILED TO
            CONCLUDE THAT AS A RESULT OF PLEA
            COUNSEL'S    INCORRECT     ADVICE    TO
            DEFENDANT THAT HE WOULD RECEIVE FULL
            JAIL CREDIT FOR THE TIME HE SERVED IN
            CUSTODY PRIOR TO SENTENCING, COMBINED
            WITH HIS FAILURE TO EXPLAIN TO
            DEFENDANT THE DIFFERENCE BETWEEN JAIL
            CREDIT AND GAP-TIME CREDIT, DEFENDANT
            ENTERED AN INVOLUNTARY GUILTY PLEA,
            WITHOUT A FULL UNDERSTANDING OF ITS
            CONSEQUENCES, DEPRIVING DEFENDANT OF
            HIS   CONSTITUTIONAL RIGHT TO       THE
            EFFECTIVE ASSISTANCE OF COUNSEL.

We disagree and affirm.

      On May 4, 2007, defendant was charged along with two codefendants in

an Essex County indictment with first-degree conspiracy to commit murder,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a) (count one); three counts of first-

degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts two, three, and four); two


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                                       2
counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)

(counts five and eleven); two counts of second-degree possession of a handgun

for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six and twelve); two

counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3

(counts seven and eight); two counts of second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1) (counts nine and ten); second-degree conspiracy to

commit aggravated arson, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:17-1(a) (count

thirteen); and second-degree aggravated arson, N.J.S.A. 2C:17-1(a) (count

fourteen). The charges stemmed from defendant's alleged involvement in the

commission of a triple homicide in 2006 that was motivated by retaliation for a

prior fight involving one of the codefendants.

      Defendant was arrested and detained on the homicide charges on October

12, 2006. While the homicide charges were pending, on December 5, 2006,

defendant pled guilty to unrelated drug charges, and was sentenced on February

21, 2007, to an aggregate term of four years' imprisonment, with a two-year

parole disqualifier, on the drug charges as well as a resulting violation of

probation. Defendant maxed out on the aggregate sentence on August 27, 2009,

at which time he was transferred to the Essex County jail, where he remained

continuously detained on the homicide indictment.


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                                       3
      On April 5, 2013, defendant entered a negotiated guilty plea to five of the

fourteen charges contained in the homicide indictment. Specifically, defendant

pled guilty to first-degree conspiracy to commit murder (count one), three counts

of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, as amended from

murder (counts two, three, and four), and third-degree unlawful possession of a

handgun (count five). In exchange, the State agreed to recommend an aggregate

fourteen-year prison sentence, 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.

The State also agreed to dismiss the remaining nine counts of the indictment,

and to refrain from seeking an extended term sentence or prosecuting defendant

for a certain persons not to possess firearms charge in connection with the

homicides.

      During the plea colloquy, defendant told the judge his attorney explained

everything to him and answered all his questions, and he was absolutely satisfied

with his attorney's services. In accordance with Rule 3:9-2, after ensuring that

there was an adequate factual basis, and that the plea was made "freely and

voluntarily," with a full understanding of "the nature of the charges" and the

consequences of the plea, the judge accepted the plea. Thereafter, on May 17,




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2013, the judge sentenced defendant in accordance with the plea agreement. 1

During the sentencing hearing, after plea counsel objected to the omission of

gap-time credit in the pre-sentence report, the parties reached an agreement on

the appropriate award. As a result, the judge awarded 1491 days of jail credit,

and 9172 days of gap-time credit from February 21, 2007, to August 26, 2009.

       On January 16, 2014, the judge denied defendant's post-conviction motion

to convert his gap-time credits to jail credits. Relying on State v. Hernandez,

208 N.J. 24, 43 (2011), the judge explained that "[j]ail credit [was] inapplicable

for that time frame because [defendant was] . . . serving a sentence for an

unrelated drug offense" and "[o]nce a defendant starts serving a sentence[,] jail

credit stops accruing on all pending cases." On June 1, 2015, we affirmed the

January 16, 2014 order on a Sentence Only Argument (SOA) calendar. See R.

2:9-11.

       Subsequently, on September 6, 2017, defendant filed a timely pro se

petition for PCR, alleging ineffective assistance of counsel (IAC) .         In a

supporting certification, defendant asserted he was "misled" because his


1
    Count one was merged into count two.
2
  Although the oral sentence indicated an award of 917 days, the memorializing
judgment of conviction (JOC) reflected 918 days of gap-time credit. On appeal,
the parties do not dispute the accuracy of the JOC.
                                                                          A-3232-18T1
                                        5
attorney "never explained [to him] that the 917 days [g]ap[-t]ime credits would

be useless and thus have no effect on reducing [his] overall exposure." Instead,

his attorney "advised [him] that [he] would get full credit for all the time that

[he] had spent confined." Defendant asserted that "[h]ad [he] known that the

[g]ap[-t]ime credits would be useless, [he] would not have accepted the plea

agreement."

      After defendant was assigned PCR counsel, Judge Michael L. Ravin, who

was also the plea and sentencing judge, conducted oral argument and, later, an

evidentiary hearing to determine what plea counsel told defendant "regarding

his potential sentence if he pled guilty." At the evidentiary hearing conducted

on December 7, 2018, defendant and plea counsel testified. Following the

hearing, Judge Ravin entered an order on January 7, 2019, denying defendant's

petition.

      In an accompanying written decision, the judge reviewed the factual

background and procedural history of the case, made factual findings from the

testimony elicited at the evidentiary hearing, applied the applicable legal

principles, and concluded defendant failed to establish a prima facie case of

IAC. Specifically, the judge found defendant failed to show by a preponderance

of the credible evidence that counsel's performance fell below the objective


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                                       6
standard of reasonableness set forth in Strickland v. Washington, 466 U.S. 668,

687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,

49-53 (1987), and that the outcome would have been different without the

purported deficient performance as required under the second prong of the

Strickland/Fritz test. See State v. Gaitan, 209 N.J. 339, 350 (2012) ("With

respect to both prongs of the Strickland test, a defendant asserting [IAC] on PCR

bears the burden of proving his or her right to relief by a preponderance of the

evidence.").

      Initially, the judge summarized defendant's testimony as follows:

               [Defendant] testified that his trial counsel told him that
               he would have to serve [eleven] years and [nine]
               months[3] if he pled guilty. . . . [Defendant] stated that
               his trial counsel told him that the entire approximately
               [six-and-a-half] years he had spent in jail would count
               against his sentence. [Defendant] testified that had he
               known that the gap credits would not actually affect the
               length of his sentence, he would not have pled guilty,
               but instead would have haggled for a better deal of
               [twelve] years total subject to [NERA] instead of
               [fourteen] years. On cross-examination, [defendant]
               stated that it was his assumption that the gap credits
               would reduce his actual time served.




3
  Notably, eleven years and nine months constitutes eighty-five percent of a
fourteen-year prison sentence.
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      Next, the judge encapsulated the testimony of plea counsel, a criminal

defense attorney with twenty-two years of experience, as follows:

            [Plea counsel] testified that he did not have an
            independent recollection of speaking to [defendant]
            regarding jail credit, but that it would have been his
            practice to do so. [Plea counsel] testified that he would
            not mislead a client in order to get the client to plead
            guilty, and that it was his practice to give accurate
            information regarding jail and gap time credits.

      Based on "the tone and demeanor" of the witnesses, the judge found plea

counsel's testimony "credible" but "treated [defendant's] testimony with

skepticism." According to the judge, although plea counsel "had very little

independent recollection of th[e] case, he was forthright about that fact and did

not hesitate to answer questions or admit that he did not know the answer to a

question." On the other hand,

            [defendant] ha[d] the greatest interest in the outcome of
            the proceedings, and his statements were unclear and
            somewhat inconsistent regarding how he came to his
            understanding that gap credits would affect his actual
            time served and how that understanding would have
            affected his decision to plead guilty in return for a
            [fourteen] year sentence.

      In rejecting defendant's contention that he was prejudiced by any

purported deficiency in plea counsel's performance, the judge relied on the

standard enunciated in State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009). There,


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                                       8
the Court held that to establish the Strickland/Fritz prejudice prong to set aside

a guilty plea based on IAC, a defendant must show "that 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." Nuñez-Valdéz, 200 N.J. at

139 (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

      Judge Ravin concluded that defendant "failed to show that he was

prejudiced by trial counsel's failure to inform him that gap time credits would

not reduce the actual time he served on his sentence" because

            [defendant] explicitly stated at the evidentiary hearing
            that he would have tried to bargain for a [twelve-year]
            sentence, which one of his co-defendants received, and
            not that he would have attempted to go to trial and risk
            a [135-year] sentence. While [defendant] did state that
            he would not have pled guilty had he known about the
            difference between jail and gap time credit,
            [defendant's] representation that it would have been his
            intention to "haggle" his plea offer down to [twelve]
            years provides context to this statement. There is
            nothing in the record to indicate that the State would
            have been willing to lower its already lenient offer of
            [fourteen] years down to [twelve], and the [c]ourt has
            no basis to assume it would have done so. . . . Thus,
            [defendant] cannot show that the outcome of his case
            would have been different had he been properly advised
            about the difference between gap and jail credits.

      On appeal, defendant renews the contention rejected by Judge Ravin,

arguing he received IAC because his plea counsel "neglected his obligation to


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                                        9
ensure that [he] entered a knowing and voluntary plea," by "fail[ing] to explain

the difference between gap-time credit and jail credit." Defendant asserts the

judge's "holding that defendant failed to show he was prejudiced was

contradicted by the record which revealed that as a result of plea counsel's

ineffective representation defendant would have to serve three more years in

prison than he was led to believe by plea counsel."

      We reject defendant's arguments and affirm substantially for the reasons

articulated in Judge Ravin's comprehensive and well-reasoned written opinion.

We add only the following brief comments.

      In order to establish the Strickland prejudice prong to set aside a guilty

plea based on IAC, in addition to showing "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[,]" DiFrisco, 137 N.J. at 457 (alteration in

original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)), "'a [defendant] must

convince the court that a decision to reject the plea bargain'" and "insist on going

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)). The latter determination should be "based on evidence,

not speculation." Ibid.


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      Where, as here, the judge conducts an evidentiary hearing in adjudicating

a PCR petition, we apply a deferential standard of review. State v. Pierre, 223

N.J. 560, 576 (2015). The factual findings made by a PCR court following such

a hearing will be accepted if they are based on "sufficient credible evidence in

the record." Ibid. (quoting State v. Nash, 212 N.J. 518, 540 (2013)). Legal

conclusions are reviewed de novo. Ibid. (quoting Nash, 212 N.J. at 540-41).

      Applying these standards, we are satisfied Judge Ravin's factual findings

are amply supported by the record, and his legal conclusion that defendant failed

to make a prima facie showing of IAC under the Strickland/Fritz test is

unassailable.

      Affirmed.




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