On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 96-02-0239, 96-05-0714, 96-10-1356 and 96-02-0198, and Accusation No. 97-05-0878.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Baxter.
Ten years ago defendant James Bryson pled guilty to certain crimes included in five charging documents, including multiple counts of aggravated assault. The guilty pleas were entered pursuant to a written plea agreement between defendant and the State, in which defendant agreed to be exposed to an aggregate sentence of up to eighteen years flat. After the sentencing judge subsequently imposed an eighteen-year prison term, defendant unsuccessfully moved for reconsideration. He then unsuccessfully appealed the sentence on grounds of excessiveness. See A-0261-01T4 (June 11, 2002). After those efforts failed, he filed a petition for post-conviction relief (PCR) with the Law Division, which the court also denied.
Defendant now appeals the Law Division's denial of PCR relief on two grounds: (1) he was allegedly misinformed by his trial counsel about the consequences of his guilty pleas, and (2) his PCR counsel was ineffective in failing to obtain certifications in support of his claims regarding his sentence and present them to the PCR judge. We affirm.
As a threshold matter, we consider the State's argument, one that was not raised in the Law Division, that defendant's PCR petition was time-barred under R. 3:22-12. We decline to decide the appeal on those grounds, not only because the argument was not presented by the State at the trial level, but also because defendant's arguments, in essence, implicate the constitutionality of his sentence and thus arguably fall under the Rule's time bar exception. Ibid.*fn1
On the merits, we concur with the Law Division judge that defendant has failed to demonstrate that his bargained-for sentence was improper due to an alleged lack of understanding of the consequences of his plea. As the PCR judge noted, defendant had been facing an aggregate exposure of over fifty-one years on the four indictments and the criminal accusation charging him with numerous crimes. At the time defendant entered his guilty pleas, he specifically acknowledged that he understood that the judge could sentence him to up to eighteen years, that no promises had been made to induce him to plead guilty, and that he was satisfied with his trial counsel. The written plea agreement also spelled out defendant's aggregate exposure. Even if his trial counsel had conveyed to defendant a more optimistic picture, "the erroneous sentencing prediction of a defense counsel does not warrant vacating a guilty plea rendered because of it." State v. DiFrisco, 137 N.J. 434, 455 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1990).
As to defendant's second point concerning the alleged ineffectiveness of his PCR counsel in the Law Division, our own review of the record reveals no deficiencies of performance by that attorney, nor any actual prejudice to the client. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) (establishing a two-part test for counsel's ineffectiveness under the Sixth Amendment, requiring proof of deficient performance and actual prejudice) see also State v. Fritz, 105 N.J. 42, 58 (1987).
Moreover, to the extent that this second argument concerns alleged failures by PCR counsel to gather mitigation proofs that supposedly could have shown that defendant's sentence was excessive, we note that a claim of an excessive sentence is not cognizable on a PCR application. State v. Ervin, 241 N.J. Super. 458, 471 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990). Additionally, the sentencing factors, including defendant's lengthy prior criminal record listing eight prior adult indictable convictions, already had been subject to judicial review through the sentencing appeal decided in 2002.