SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 18T4 STATE OF NEW JERSEY, Plaintiff

- Respondent,
v. MILTON T. LATHAM, a/k/a MAURICE T. BYNUM, SHAWN BYNU M, SHAWNEY BYNUM and TASHAUN BYNUM, Defendant

- Appellant.

____________________________

Submitted March 30, 2020

– Decided A pril 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,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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- 18T4 Special Dep uty 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 Gran d 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

- deg ree conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5

- 2 a n d 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 t hree ); 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

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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). I n 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 posses sed over half an ounce of crack cocaine with intent to sell it and possessed a hand gun 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 Indictmen t 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 sentenc e . In September 201 0, 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 a4 A

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concurrent three

- year term on Indictment No. 09

- 04

- 1065. Defendant did not appeal his conviction or sentence on either indictment. On October 13, 20 18 , defendant file d a pro se PCR petition. Counsel was assigned to represent him and filed separate bri efs 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
c ounsel 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 convict ions
. Defendant is now in federal custody. He was classifi ed 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 2 2, 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 pl e ading guilty to . He explained that defendant was comfortable moving forward with the pleas and5 A

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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 w ish 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 knowing ly , intelligent ly , and voluntar il y. Based on those findings and conclusions, t he judge issued an order and oral decision denying relief because defendant f ailed 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 performance6 A

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was deficient and that, but for the deficient performance, the result would have been different. This appeal followed. On appeal, d efendant raises the following contention : THE PCR COURT ERRED IN DENYING MR. LATHAM'S PETITION FOR POST

- CONV ICTION 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 h is 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

Va ldez , 200 N.J. 129, 141 (2009). T he plea transcript and PCR hearing testimony fully support the judge's findings and the legal consequences that flow from those findings.7 A

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A defendant has the right to be informed of the direct or penal consequences of hi s 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 wa s not a direct or penal consequence that defendant ha d the right to be informed of. State v. Wilkerson , 321 N.J. Super. 219 , 224

- 2 7 (App. Div. 1999). On the contrary, it was a collateral consequence. Id. at 22 7
. 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
. I bi d. Failure to do so is not ineffective assistance of counsel. Defendant 's s e lf

- serving assertion that he wanted to pursue a trial but did not do so because counsel did not properly revi ew his case , coerced him into pleading guilty , and told him he would have only one conviction , were not supported by c redible evidence
. Affirmed.