On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 98-09-0923 and 99-06-0647.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Lisa.
Pursuant to a plea agreement, defendant pled guilty on July 19, 1999 to charges in two Passaic County indictments as follows: Under Indictment No. 98-09-0923, defendant pled guilty to third-degree burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6; under Indictment No. 99-06-0647, defendant pled guilty to third-degree attempted burglary, N.J.S.A. 2C:5-1, N.J.S.A. 2C:18-2, and N.J.S.A. 2C:2-6. The prosecutor's plea recommendation was five years imprisonment with a one-year parole disqualifier on each charge, with the sentences to be served concurrently. As part of the plea discussions, Judge Clark participated, with the consent of the prosecutor, and indicated to defendant that she would impose five-year concurrent sentences with no parole disqualifier. See R. 3:9-3(c). On September 10, 1999, the judge imposed those sentences and judgments of conviction were entered. As provided in the plea agreement, the prosecutor moved to dismiss all remaining counts in the indictments, and the judge granted the motion. Defendant did not appeal.
When defendant entered his plea in Passaic County, he had pending charges in Sussex County. He was represented by the same attorney in both counties, and that attorney attempted to have the Sussex County charges transferred to Passaic County to enable defendant to have the possibility of entering into a "package" disposition of all of the charges. The Sussex County prosecutor refused and insisted on dealing with the Sussex County charges separately. Defendant pled guilty to the Sussex County charges on October 19, 1999, and was sentenced on the same date on two third-degree offenses to five-year prison terms, to be served concurrently with each other, but consecutively to the Passaic County sentence.
On a date undisclosed by the record we have been furnished on appeal,*fn1 defendant filed a petition for post-conviction relief (PCR). Defendant raised several bases of alleged ineffective assistance of counsel, including the contention that his attorney assured him that his Sussex County sentence would be imposed concurrently with his Passaic County sentence and that he would not be subject to deportation proceedings.
The PCR hearing was conducted on May 11, 2006. Judge Clark noted that in the colloquy at defendant's plea proceeding it was made completely clear that the Sussex County charges were separate, were not being "packaged," and that no promises were made that the sentence on those charges would be run concurrent with the Passaic County sentence, and that defendant faced potential deportation proceedings, which was a decision within the auspices of the immigration authorities, and that no representations or promises had been made to defendant regarding his immigration status. And, at the time of the plea, Judge Clark asked defendant: "Other than what's been placed here on the record, has anybody made any additional promises to you as to what would happen at the sentence if you pleaded guilty other than what we've laid out here on the record?" Defendant answered, "No." Finally, defendant's responses regarding these issues were consistent with the plea form that he signed and which he confirmed he read and understood before signing it.
The judge rejected defendant's argument that his plea was not knowing and voluntary because of alleged misinformation about concurrency and immigration status. She found that defendant was not misinformed on these subjects, nor did he make a sufficient threshold showing to require an evidentiary hearing. She entered an order denying defendant's petition.
On appeal, defendant argues:
DEFENDANT'S TRIAL COUNSEL AFFIRMATIVELY MISINFORMED HIM THAT DEPORTATION WAS AN UNCERTAIN CONSEQUENCE OF HIS PLEA THEREFORE REQUIRING HIS PLEA BE VACATED.
DEFENDANT HAS MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO AN EVIDENTIARY ...