STATE OF NEW JERSEY VS. MILTON T. LATHAM (09-12-3314 AND 09-04-1065, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 21, 2020
• Docket: A-3132-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3132-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MILTON T. LATHAM, a/k/a MAURICE T. BYNUM, SHAWN BYNUM, SHAWNEY BYNUM and TASHAUN BYNUM,

Defendant-Appellant. ____________________________

Submitted March 30, 2020 – Decided April 21, 2020

Before Judges Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos: 09-12-3314 and 09-04-1065.

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

Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Milton Latham appeals from the denial of his petition for post-

conviction relief (PCR) after an evidentiary hearing. We affirm.

An Essex County Grand Jury returned Indictment No. 09-04-1065

charging defendant with third-degree possession of a controlled dangerous

substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession

of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); and

second-degree possession of CDS with intent to distribute within 500 feet of

public housing, N.J.S.A. 2C:35-7.1 (count three).

The grand jury also returned Indictment No. 09-12-3314 charging

defendant and a co-defendant with second-degree conspiracy to possess CDS

with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(2) (count

one); third-degree possession of CDS, N.J.S.A. 2C:35-10(a), (b) (count two);

second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-

5(b)(2) (count three); second-degree possession of CDS within 500 feet of

public housing, N.J.S.A. 2C:35-7.1 (counts four and seven); third-degree

possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count five); third-degree

manufacturing and distributing CDS, N.J.S.A. 2C:35-5(b)(1) (count six); third-

A-3132-18T4 2 degree receiving stolen property, N.J.S.A. 2C:20-7 (count eight); and second-

degree committing a CDS offense while possessing a firearm, N.J.S.A. 2C:39-

4.1 (count nine).

In June 2010, defendant pled guilty to counts three and nine of Indictment

No. 09-12-3314 and count one of Indictment No. 09-04-1065. During the plea

hearing, defendant testified that on August 30, 2008, in Newark, he possessed

over half an ounce of crack cocaine with intent to sell it and possessed a handgun

in his vehicle, as to Indictment No. 09-12-3314. He further testified that his co-

defendant had nothing to do with either the drugs or the handgun. Regarding

Indictment No. 09-04-1065, defendant testified that on November 10, 2008, in

Newark, he possessed crack cocaine.

Defendant also testified that aside from the terms of the plea agreement,

no other promises were made to him. He confirmed that no one threatened him

to plead guilty and that he was pleading guilty because he was guilty. He

acknowledged understanding that if he were convicted of another Graves Act

offense, N.J.S.A. 2C:43-6(c), he faced a mandatory extended term sentence.

In September 2010, defendant was sentenced in accordance with the terms

of the plea agreement to an aggregate five-year prison term subject to a three-

year period of parole ineligibility on Indictment No. 09-12-3314, and a

A-3132-18T4 3 concurrent three-year term on Indictment No. 09-04-1065. Defendant did not

appeal his conviction or sentence on either indictment.

On October 13, 2018, defendant filed a pro se PCR petition. Counsel was

assigned to represent him and filed separate briefs on each indictment.

Defendant then filed additional certifications in support of PCR. Defendant

claims he wanted to pursue a trial but was pressured to plead guilty and

promised, if he did so, his charges would be downgraded. He also alleged trial

counsel told him that his guilty pleas would be considered only one conviction.

Defendant contends he was never advised that his pleas or sentence would affect

his sentence for subsequent convictions.

Defendant is now in federal custody. He was classified as a career felon

by the federal court and received an enhanced sentence because he had four

convictions—three from these indictments and one from the federal prosecution.

An evidentiary hearing was conducted by Judge Michael A. Petrolle on

January 22, 2019. Defendant waived his appearance at the evidentiary hearing

and did not present any witnesses. Defendant's trial counsel, Brian Kapalin,

testified for the State. Kapalin testified that he never told defendant he would

receive one conviction for the three charges he was pleading guilty to. He

explained that defendant was comfortable moving forward with the pleas and

A-3132-18T4 4 satisfied with his representation. Kapalin explained that defendant faced

extended term sentencing had he gone to trial.

Kapalin further testified that defendant did not have any prior or pending

federal charges while he represented him. He also testified that he would have

proceeded to trial on the indictments had defendant desired to do so. Kapalin

indicated defendant did not wish to appeal either indictment.

Judge Petrolle found Kapalin's testimony to be credible. The judge found

defendant was not told he would have only one conviction for all the charges.

He also found defendant was not pressured to plead guilty and was well

counseled. The judge further found that trial counsel was not obligated to advise

defendant that his convictions would affect a future federal sentence because no

attorney could anticipate a defendant's subsequent crimes, especially federal

crimes. The judge also found defendant was advised of his right to appeal .

These findings led to the conclusion that defendant failed to demonstrate that

his pleas were not made knowingly, intelligently, and voluntarily.

Based on those findings and conclusions, the judge issued an order and

oral decision denying relief because defendant failed to establish a prima facie

claim of ineffective assistance of counsel under the two-prong test of Strickland

v. Washington, 466 U.S. 668, 687 (1984): that defense counsel's performance

A-3132-18T4 5 was deficient and that, but for the deficient performance, the result would have

been different. This appeal followed.

On appeal, defendant raises the following contention:

THE PCR COURT ERRED IN DENYING MR. LATHAM'S PETITION FOR POST-CONVICTION RELIEF BECAUSE COUNSEL WAS INEFFECTIVE IN FAILING TO ADVISE HIM THAT HIS CONVICTIONS UNDER INDICTMENTS 09-12-3314 AND 09-04-1065 WOULD LATER ENHANCE [A] FEDERAL SENTENCE.

Having considered defendant's arguments in light of the record and

applicable legal standards, we conclude they lack sufficient merit to warrant

extensive discussion in a written opinion, R. 2:11-3(e)(2) and affirm

substantially for the reasons set forth by Judge Petrolle in his oral decision. We

add the following comments.

Although legal determinations are reviewed de novo, "[a] reviewing court

is required to affirm the findings of the trial court if they could reasonably have

been reached on sufficient credible evidence in the record." State v. Nunez-

Valdez, 200 N.J. 129, 141 (2009). The plea transcript and PCR hearing

testimony fully support the judge's findings and the legal consequences that flow

from those findings.

A-3132-18T4 6 A defendant has the right to be informed of the direct or penal

consequences of his plea, but not to collateral consequences. State v. Howard,

110 N.J. 113, 122 (1988) (citation omitted). The sentencing effect of these

convictions on a future federal conviction was not a direct or penal consequence

that defendant had the right to be informed of. State v. Wilkerson, 321 N.J.

Super. 219, 224-27 (App. Div. 1999). On the contrary, it was a collateral

consequence. Id. at 227. There is no constitutional requirement to advise a

defendant of the collateral consequences of a plea on subsequent crimes that

have not yet been committed. Ibid. Failure to do so is not ineffective assistance

of counsel.

Defendant's self-serving assertion that he wanted to pursue a trial but did

not do so because counsel did not properly review his case, coerced him into

pleading guilty, and told him he would have only one conviction, were not

supported by credible evidence.

Affirmed.

A-3132-18T4 7