On appeal from the Superior Court of New Jersey, Law Division, Camden County, Ind. No. 96-02-0526.
The opinion of the court was delivered by: Per Curium
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Lihotz.
Defendant Richard Roche appeals from the July 14, 2005 order denying his petition for post-conviction relief (PCR), without an evidential hearing. We affirm.
On February 15, 1996, a Camden County Grand Jury indicted Roche and charged him with conspiracy to commit first-degree murder in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (count one); first-degree murder in violation of N.J.S.A. 2C:11-3a(1) and (2) (count two); capital murder in violation of N.J.S.A. 2C:11-3c (count three); second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4a (count four); and third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5b (count five).
The indictment was based upon the State's proffer that defendant traveled from Puerto Rico to Camden because he was hired to kill Eric Coleman, a police informant. Defendant was paid $5000. Coleman was shot on December 24, 1994, and died of multiple gun shot wounds.
On March 24, 1998, defendant entered into a negotiated plea agreement with the State. In exchange for defendant's guilty plea to first-degree murder (count two), the State agreed to dismiss the other counts in the indictment, and to recommend a sentence of life imprisonment with a thirty-year parole ineligibility period, to be served concurrently with defendant's federal sentence, which had been imposed on March 18, 1997, on charges pursuant to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §§ 1961 to 1969 (RICO). The State also agreed that it would not object to defendant's request to serve his state sentence in federal prison, although no affirmative effort to enable defendant to do so was offered by the prosecutor. The plea agreement executed by defendant included the following comment: "State has no objection to sentence being served in Federal Bureau of Prison[s] and shall not take any affirmative application [sic] for the sentence to be served in the State prison system."
Defendant provided the factual basis for his guilty plea, stating that on December 24, 1994, he stood in front of Eric Coleman, and, with the purpose to kill him, shot him as many as five or six times. There was no dispute that Coleman died as a result of his gunshot wounds. The trial court imposed the recommended sentence as set forth in the plea agreement, which was affirmed on appeal. After sentencing, by way of correspondence with federal prison authorities, defendant learned he was ineligible to be transferred to federal prison until the completion of his New Jersey sentence.
On April 4, 2002, defendant filed his PCR petition challenging the sufficiency of the factual basis for his guilty plea and claiming ineffective assistance of counsel. Judge Cook dismissed defendant's assertion of insufficient evidence to support the guilty plea, determining that the issue was barred by Rule 3:22-4, as it could have been raised on appeal, but was not. See State v. McQuaid, 147 N.J. 464, 483 (1997). Judge Cook also denied defendant's ineffective assistance of counsel claim, concluding defendant's argument, that his guilty plea was bottomed on the understanding that he would be serving his State sentence in federal prison, did not present an ineffective assistance claim because the Federal Bureau of Prisons declined to transfer defendant to a federal facility until his State sentence was concluded, a decision which counsel could not control. Additionally, the charge that the prosecutor committed misconduct because he led defendant to believe he could serve his State sentence in federal prison in order to induce him to enter a guilty plea, was not supported by the record below.
Defendant raises the following issues on appeal:
THE TRIAL COURT ERRED IN DISMISSING DEFENDANT'S PETITION FOR POST ...