On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-1476.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Lefelt.
Defendant Patrick Perry pled guilty to two counts of first-degree armed robbery and two weapons offenses and is currently serving a twenty-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After exhausting all direct appeals, he petitioned for post-conviction relief (PCR). He argued that he was denied effective assistance of counsel for the following reasons: (1) trial counsel should not have allowed defendant to plead guilty when he could not provide an adequate factual basis for application of NERA, which at the time required proof that the predicate crime was "violent"; (2) the plea deal deprived defendant of effective assistance of trial counsel because it included a plea restriction that "if [the] court does not impose said sentence either the State or [defendant] may withdraw from plea bargain and  proceed to trial"; and (3) appellate counsel failed to argue the inadequacy of the factual basis provided for the applicability of NERA and the illegality of the plea restriction. Defendant appeals from Judge Gelade's denial of his PCR petition. We affirm.
Every criminal defendant is guaranteed effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2062-63, 80 L.Ed. 2d 674, 692 (1984). To establish a prima facie case of ineffective assistance, however, defendant must demonstrate two factors: first, that defense counsel's performance was deficient; and second, that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; State v. Fritz, 105 N.J. 42, 58 (1987). Or, in the case of a guilty plea, that there is a reasonable probability that but for counsel's errors defendant would not have pled guilty and would have insisted on going to trial. State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L.Ed. 2d 873 (1996).
In this appeal, defendant has not made even a prima facie showing that counsel's performance was deficient. Defendant admitted that he was armed with a knife when he forcibly took property from two victims on two separate dates. In one instance, he admitted displaying the knife to the victim and in another that the victim saw the knife in his hand. Defendant further conceded that if "[s]omebody seen me coming at them with a knife I would think they would be threatened."
A factual basis for a guilty plea is considered in light of the surrounding circumstances, and is not limited to defendants' own words, since it is not uncommon for defendants to be unwilling to express the distasteful nature of their criminal acts. State v. Smullen, 118 N.J. 408, 415 (1990); State v. Sainz, 107 N.J. 283, 293 (1987). Our review of the record in this case leads us to conclude that defendant provided an adequate factual basis for the application of NERA to these armed robberies.
Defendant further claims counsel was inadequate because the plea restriction precluded counsel from arguing for a lesser sentence. See State v. Briggs, 349 N.J. Super. 496, 498 (App. Div. 2002). In Briggs, however, the plea form provided that "defense counsel agrees not to request a sentence of less than twenty years." Ibid. We found that provision deprived defendant of effective assistance during a critical stage of the criminal proceedings. Ibid. But that is not precisely the restriction contained in the instant plea agreement.
Here, neither party was precluded from making any arguments they believed were warranted, and defendant himself made an impassioned and articulate plea for leniency. The agreement allowed either party to withdraw from the deal only if the judge failed to impose the recommended sentence. The State was undoubtedly motivated to place this restriction in the plea deal because the court had previously expressed some reservation about the leniency of the deal.
In conjunction with this argument, we have not been supplied with, nor has our review located, any mitigating factors that possibly could have reduced defendant's sentence below the plea deal, which was quite favorable considering the nature of the offenses and defendant's lengthy record. In short, the inclusion of this restriction did not prejudice defendant and, even if the restriction had been removed from the deal, we seriously doubt defendant would have either proceeded to trial or obtained any other benefit or advantage. See DiFrisco, supra, 137 N.J. at 457.
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