STATE OF NEW JERSEY VS. MARKEL FOWLKES(08-12-2191, HUDSON COUNTY AND STATEWIDE)
A-2380-16T3
| N.J. Super. Ct. App. Div. | Nov 15, 2017Background
- Defendant Markel Fowlkes pled guilty (Feb. 16, 2011) to second-degree robbery; factual basis: April 12, 2008 robbery and assault in a Jersey City hardware store.
- Plea agreement: State would recommend 10 years with 85% NERA parole ineligibility to run consecutively to an existing sentence; trial judge announced he would impose an 8-year NERA sentence concurrent with the existing sentence.
- Defendant signed NERA plea forms and acknowledged at plea hearing that his sentence was "eight with eighty-five" and that he understood parole supervision; he also stated his counsel had not done "the best" she could.
- Sentenced April 7, 2011 to concurrent eight years with 85% parole ineligibility; received 910 days gap-time credit; appellate court affirmed sentence in 2012.
- Defendant filed a pro se PCR petition alleging ineffective assistance: counsel allegedly misinformed him about jail credits versus gap time, failed to explain parole supervision and parole ineligibility consequences; PCR court held an evidentiary hearing, heard counsel's testimony she explained NERA, parole supervision, and gap time, and denied PCR (Dec. 1, 2016).
- Appellate division affirmed: record and plea forms demonstrated defendant knew the consequences; defendant failed to show counsel's performance was deficient or that he would have gone to trial but for any error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective in advising re: jail credits vs gap time and parole ineligibility | State: Counsel competent; plea forms and plea colloquy show defendant understood NERA, gap time, and parole supervision | Fowlkes: Counsel misled him about jail credit vs gap time and did not adequately explain that gap time would not reduce NERA ineligibility or explain parole supervision | Denied — PCR court crediting record and counsel's testimony found no deficient performance and no prejudice |
| Whether counsel failed to explain concurrent sentence and effect of prior custody credit | State: Plea colloquy and counsel testimony show explanation given | Fowlkes: Did not understand how concurrent sentence and gap time credits work | Denied — plea colloquy and forms show understanding; court awarded gap-time credit and concurrent sentence benefitted defendant |
| Whether defendant would have rejected plea but for counsel's errors (prejudice) | State: Defendant got a more favorable sentence (8 yrs concurrent) than the prosecution’s recommended 10 yrs consecutive; unlikely he would risk trial | Fowlkes: He would not have pled if properly informed about credits and parole supervision | Denied — defendant offered only bare assertion; no reasonable probability he would have insisted on trial |
| Whether plea was entered knowingly, intelligently, and voluntarily | State: Plea forms and court's colloquy established knowing and voluntary plea | Fowlkes: Lacked full understanding due to counsel’s failures | Denied — record shows defendant acknowledged terms and judge ensured understanding |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective assistance test)
- State v. Fritz, 105 N.J. 42 (adopts Strickland standard in New Jersey)
- State v. DiFrisco, 137 N.J. 434 (standard for assessing counsel in guilty-plea context)
- Hill v. Lockhart, 474 U.S. 52 (prejudice standard where plea is challenged)
- Tollett v. Henderson, 411 U.S. 258 (guilty-plea waiver of collateral claims for antecedent constitutional violations)