SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3170-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON SMITH,

Defendant-Appellant.

_______________________

Submitted May 11, 2020 – Decided June 1, 2020

Before Judges Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment Nos. 14-05-

0560 and 14-05-0570.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique D. Moyse, Designated Counsel, on 

the brief).

Christopher L. C. Kuberiet, Acting Middlesex County 

Prosecutor, attorney for respondent (Nancy Anne

Hulett, Special Deputy Attorney General/Acting

Assistant Prosecutor, of counsel and on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Brandon Smith appeals from a January 10, 2019 order denying 

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

affirm. 

On February 9, 2014, defendant, previously convicted for attempted 

murder, entered a bar in Perth Amboy and pointed a gun at Edward Gonzalez. 

Under Indictment No. 14-05-560, a grand jury charged defendant with fourthdegree aggravated assault, N.J.S.A. 2C:12-l(b)(4) (count one), second-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two), seconddegree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) 

(count three), third-degree riot, N.J.S.A. 2C:33-1(a)(3)(count four), and fourthdegree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five). In a separate 

indictment, No. 14-05-570, defendant was charged with second-degree certain 

persons not to have weapons, N.J.S.A. 2C:39-7(b). 

Pursuant to a negotiated agreement, defendant pled guilty to the seconddegree possession of a weapon for an unlawful purpose charge (count three of 

Indictment No. 14-05-560) and the second-degree certain persons offense under 

Indictment No. 14-05-570. In return, the State agreed to dismiss the remaining 

charges and to recommend a five-year sentence with forty-two months of parole 

ineligibility on the possession of a weapon for an unlawful purpose charge with 
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a concurrent five-year sentence with sixty months of parole ineligibility on the 

certain person charge, along with applicable fines and penalties. In addition, the 

sentences were to run consecutively to the five-year sentence defendant was then

serving for a parole violation. At sentencing, the court considered the 

aggravating and mitigating factors and sentenced defendant in accordance with 

the plea agreement. All remaining counts in Indictment No. 14-05-560 were 

dismissed. 

Defendant did not appeal his conviction or sentence. Instead, he filed a 

PCR petition in which he maintained that his trial counsel was ineffective for 

misinforming him about the time he would effectively serve under the plea 

agreement. According to defendant, although he understood that his aggregate 

sentence under the plea agreement would run consecutive to that related to his

parole violation, he claimed he had already received a parole date for that 

violation and his trial counsel incorrectly advised him that the parole date would 

not be affected by his plea. Defendant further claimed that as a result of pleading 

guilty to the weapons offenses, and contrary to his counsel's advice, his parole 

release date was changed resulting in him serving the complete five-year 

sentence. Defendant contended had his counsel advised him of this 

consequence, he would not have pled guilty to the weapons charges. 
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As explained by defendant's PCR counsel:

[Defendant was] aware that he had two pending 

charges. He was also aware that the charges amounted 

to a violation of his parole and that is why he had been 

incarcerated. However, he believed that he would still 

be eligible for parole. In fact, as stated in the 

Defendant's supplemental certification, trial counsel 

told him, specifically that his parole date "was not 

going to change." Defendant understood that the two 

charges were going to run consecutively to the parole 

violation. But, he did not understand that his guilty plea 

was going to have such a detrimental effect on the 

parole violation sentence. This was not told to him.

In effect, Defendant was given a ten[-]year sentence, 

not a five[-]year term. This was error. Reasonably 

competent counsel should have explained to Mr. Smith 

that his parole date was going to change. Competent 

counsel should have told him that he would not get 

paroled, but rather, because he entered these guilty 

pleas, he was going to have to serve the entire five years 

for the parole violation. Reasonably competent counsel 

would have told Defendant he was actually getting a 

ten[-]year sentence. Counsel should have told him he

would have to serve ten years before being released. 

After considering defendant's and his appointed counsel's submissions 

along with the oral arguments of the parties, the first PCR judge scheduled an 

evidentiary hearing. Judge Michael A. Toto, who was the plea and sentencing 

judge but not the initial PCR judge, conducted that hearing. Judge Toto took 

testimony from defendant's trial counsel and defendant. 
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Defendant's trial counsel testified that he had between five and ten 

conversations with defendant in which they discussed the discovery produced 

by the State, the strength of the State's evidence against him, and a possible plea 

deal. Counsel also recalled discussing the State's plea offer and the concepts of 

concurrent and consecutive sentences. As to the effect of the plea on his parole 

violation, counsel stated he advised defendant he would need to serve the fiveyear aggregate sentence offered by the State consecutive to the time defendant 

was currently serving for his parole violation. Counsel also testified that he was 

unsuccessful in negotiating a plea that would include a sentence that was 

concurrent to both his current charges and the sentence he was serving for his 

parole violation and he communicated that fact to defendant. 

Counsel also testified that although he did not have a specific recollection 

regarding any inquiry defendant may have made regarding the effect of his plea 

on his parole date, he stated that if defendant raised the issue, he would have 

informed him that he could not predict his release date for his parole violation. 

Counsel specifically stated that he would have told defendant "effectively, I 

don't know when parole [is] going to parole you out. You've got the five year 

term[,] you've got to do it and it could be up to the five years." Defendant's 

counsel also testified that defendant, prior to entering his plea "manifested an 
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understanding that whatever happens [before] the parole board is beyond 

[counsel's] control." 

Defendant's counsel also confirmed that the charges in the two indictments 

exposed defendant to multiple second-degree weapons charges and an extended 

term sentence. Accordingly, had defendant rejected the plea and was convicted 

at trial, he would have been exposed to a significantly longer period of 

incarceration, which also would have run consecutive to his parole violation

sentence. Finally, counsel explained that the State's proofs against defendant

were considerable. Indeed, the State's proofs included the fact that defendant, a 

convicted felon, pointed his gun at the victim in a public location. Defendant's 

actions were witnessed by numerous individuals and were recorded by a 

surveillance video. Defendant also confessed to police shortly after his arrest in 

a recorded statement. 

Defendant's counsel also explained certain discrepancies on defendant's 

plea form. Specifically, counsel stated that the question asking if defendant was 

on parole was incorrectly circled "no." A separate question on the form, 

however, which asked if defendant was aware his sentence could run 

consecutive to his current sentence was answered in the affirmative. 
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Counsel also testified that he discussed defendant's parole status with him 

and noted that Judge Toto specifically raised the issue with defendant during the 

plea hearing, during which defendant acknowledged he was serving a five-year 

sentence for a parole violation. In this regard, Judge Toto explicitly informed 

defendant he would commence serving the sentence pursuant to the plea after 

he completed his sentence for the parole violation. 

Defendant testified that when he conferred with his counsel, they 

discussed the plea offer which he described as "five with a five offer 

consecutive." Defendant stated he understood the difference between a 

consecutive and concurrent sentence and that the plea agreement included both 

a concurrent and consecutive sentence such that he would serve his current 

sentence after he completed serving his sentence for the parole violation. 

Defendant stated that at the time he pled guilty, he had already appeared before 

the parole board and "was given a twenty-nine-month hit which would have 

made [him eligible to] get parole in July 2017." According to defendant, his 

counsel advised him that if "[he] took the [plea] it wouldn't affect my parole 

date." Defendant stated that he took the plea, hoping "that he would get eight 

years." He admitted on cross-examination, however, that his counsel also 
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advised him that he could serve ten years and that discussion took place prior to 

his plea. 

Judge Toto rendered a written opinion and concluded that defendant failed 

to satisfy either prong of the two-part test for ineffective assistance of counsel 

detailed in Strickland v. Washington, 466 U.S. 688 (1984) and adopted by the 

New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987). With respect 

to prong one, Judge Toto, after having the opportunity to assess the credibility 

of defendant and his trial counsel, found that defendant understood the terms of 

the plea agreement and failed to establish that his trial counsel misadvised him 

regarding the penal consequences of the plea and that the plea would not affect

his parole violation conviction resulting in defendant serving a sentence less 

than ten years. 

More specifically, Judge Toto determined that defendant's trial counsel 

discussed the plea offer with him and its ramifications. In this regard, he noted 

that defendant conceded during the evidentiary hearing that he was aware that 

the combined sentence could total ten years, he had knowledge that the two 

pending charges amounted to a parole violation, and the court informed him that 

those charges would run concurrently, but would be consecutive to the parole 

violation. 
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Judge Toto also relied upon his colloquy with defendant at the plea

hearing where defendant referenced he was "going to do a five-year term" with 

respect to the parole violation.

1

 He emphasized that the plea colloquy indicated 

defendant could not make a prima facie showing of ineffective assistance as 

1 The relevant plea colloquy between the court and defendant during the plea 

hearing is as follows:

Q. . . . . What sentence are you serving now?

A. Five years parole violation. 

Q. Okay. So, . . .you're going to do a five-year term?

A. Yes. 

Q. . . . you understand that once you complete that 

term, whenever it is, then this sentence is going to start?

You understand that, right? 

A. Yes.

Q. Okay. And on this sentence you're looking at 

basically a five with a five, right?

A. Yes. 

Q. Okay. And that means you have to serve all five of 

those years before you're eligible for parole. You 

understand that? 

A. Yes. 
10 A-3170-18T1

defendant had ample opportunity to raise his concerns regarding parole 

eligibility, how his guilty plea might affect his parole date, or when his parole 

violation sentence would begin. 

Finally, Judge Toto found that defendant's claim that his attorney's 

misadvice prevented him from fairly evaluating his plea offer also failed for 

similar reasons. Relying again on the plea colloquy, he reemphasized that 

defendant understood his plea offer and sentence, and he discussed his 

sentencing exposure with counsel, but defendant failed to raise any of these 

issues during the plea hearing despite having an opportunity to do so. 

On appeal, defendant limits his argument to the following single 

contention: 

POINT I

[DEFENDANT] IS ENTITLED TO RELIEF ON HIS 

CLAIM THAT HIS ATTORNEY RENDERED 

INEFFECTIVE ASSISTANCE OF COUNSEL BY 

MISADVISING HIM ABOUT HIS SENTENCE. 

We find no merit to defendant's argument and affirm substantially for the 

reasons stated by Judge Toto in his eleven-page written decision of January 10, 

2019. R. 2:11-3(e)(2). We provide the following comments to amplify the 

court's reasoning. 
11 A-3170-18T1

Our review of an order granting or denying PCR involves consideration 

of mixed questions of fact and law. State v. Harris, 181 N.J. 391, 415-16 (2004). 

After a court has held an evidentiary hearing, we defer "to a PCR court's factual 

findings based on its review of live witness testimony" and will uphold findings 

that are "supported by sufficient credible evidence in the record." State v. Nash, 

212 N.J. 518, 540 (2013). However, "we need not defer to a PCR court's 

interpretation of the law," which we review de novo. Id. at 540-41. 

To establish a prima facie claim of ineffective assistance of counsel, a 

defendant must show: (1) counsel's performance was deficient; and (2) the 

deficiency prejudiced the defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. 

at 58. The Strickland test applies to challenges to guilty pleas. Hill v. Lockhart, 

474 U.S. 52, 58 (1985). A defendant must establish that his attorney failed to 

provide advice that "was within the range of competence demanded of attorneys 

in criminal cases." Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 

(1970)). A defendant also must show "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." Id. at 59. Further, as our Supreme Court recently explained 

in State v. McNeal, 237 N.J. 494 (2018), "[a] defendant has the right not to be 

'misinformed' about a material element of a plea agreement and to have his or 
12 A-3170-18T1

her 'reasonable expectations' fulfilled." Id. at 499 (citing State v. Bellamy, 178 

N.J. 127, 134 (2003) (other citations omitted)).

The record from the evidentiary hearing amply supports Judge Toto's 

finding that defendant entered his plea voluntarily and with a full understanding 

of its penal consequences and his counsel did not misadvise him. Judge Toto 

clearly informed defendant that the recommended sentence was an aggregate 

five-year term with an attendant five-year period of parole ineligibility that 

would be consecutive to the parole violation he was serving. After having an 

opportunity to evaluate the testimony of defendant and his trial counsel who the 

court deemed credible, Judge Toto concluded that trial counsel did not promise 

that defendant would serve a term less than ten years and, in this regard,

defendant confirmed that counsel advised him he could serve ten years. As these 

factual and credibility findings were amply supported by substantial evidence 

elicited at the evidentiary hearing, they warrant our deference. See Nash, 212 

N.J. at 540 (2013). 

Further, as Judge Toto concluded, defendant failed to establish that he was 

prejudiced by counsel's alleged misadvice. There was substantial evidence of 

defendant's guilt and, had defendant proceeded to trial and was convicted, he 

faced an extended term sentence. Defendant also received the benefit of 
13 A-3170-18T1

dismissal of numerous other charges in Indictment 14-05-560 and received a 

concurrent rather than a consecutive sentence. 

In sum, we agree with Judge Toto that defendant failed to establish that 

the alleged deficiencies of his trial counsel met either the performance or 

prejudice prong of the Strickland/Fritz test. 

Affirmed.