On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 99-06-1309.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and C.L. Miniman.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). No evidentiary hearing was granted and the application was denied after oral argument. We affirm.
Defendant was charged in a fourteen-count indictment with multiple violations regarding weapons possession, armed robbery, aggravated assault, attempted murder, and conspiracy. Defendant entered a plea on April 17, 2000, to one count of first-degree armed robbery and was sentenced on June 23, 2000, to the then-extant presumptive sentence of fifteen years in prison with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant did not file a direct appeal.
On March 14, 2005, defendant filed a pro se PCR petition, counsel was assigned, and on October 17, 2005, counsel filed an amended PCR petition on defendant's behalf. Defendant certified on November 11, 2005, regarding his plea that his trial attorney rarely discussed the case with him, was not responsive to any strategy, and only advised him to plead guilty to the charge. He also certified that his trial counsel did not answer or address any of defendant's "questions about the strengths, possible sentencing provisions, and other tactical matters other than to [say] that the case 'did not look good.'" Defendant asserted that he believed that his only option was to plead guilty.
Regarding the sentence imposed, defendant averred that his trial attorney did not review the presentence report with him and never objected to the application of NERA to defendant's case, even though defendant was only in possession of an unloaded weapon. He also certified that his trial attorney failed to argue that the court should not rely on a trial-court NERA opinion, which was subsequently overruled, as it was not binding on the sentencing judge. Finally, he certified that his trial attorney did not provide the sentencing judge with the aggravating and mitigating factors that applied to defendant,*fn1 did not notify defendant that he would not do so, did not object to the comments made by the prosecutor at sentencing, and did not advise defendant that he would not object.*fn2
The motion was argued on March 3, 2004, and the PCR judge began by noting that the judgment of conviction had to be amended because it did not conform to what was said at sentencing respecting mitigating and aggravating factors and failed to reflect NERA parole supervision for five years. Defendant's PCR counsel pointed to these errors as evidence that his trial counsel was ineffective. The attorney stated that he had defendant's family members in court, who would testify that they had asked the trial attorney to file an appeal, entitling defendant to an evidentiary hearing. However, none of the family members submitted a certification regarding this issue, and it was not addressed in defendant's certification.
With respect to the NERA issue, defendant argued that the State was required to prove whether the weapon was operable or inoperable, loaded or unloaded, at the time of the offense in order to support application of the NERA to the sentence, and that there were no such proofs, which defendant contended were required by State v. Grawe, 327 N.J. Super. 579 (App. Div.), certif. denied, 164 N.J. 560 (2000). As a consequence, defendant contended that the weapon was unloaded and that his trial counsel was ineffective in failing to demand a hearing to establish the factual predicate for application of the NERA.
PCR counsel also argued that the particular prosecutor who appeared at sentencing should not have handled the matter. He based this on the remarks the prosecutor made about the impact of the crime on the victims, who did not appear for sentencing. PCR counsel asserted this made the prosecutor a witness. He argued that defendant's trial counsel was ineffective for failing to object to the prosecutor's remarks.
After recessing to review Grawe, the PCR judge denied the motion from the bench on March 3, 2004, in a lengthy and carefully reasoned oral opinion addressing each issue raised by defendant and discussing the law applicable to each issue. He noted that, other than one factual issue about an alleged failure to file an appeal, all of the issues were legal. The judge found that there were no certifications before him attesting to any request that trial counsel file an appeal after sentencing. As a consequence, he held that defendant had not made out a prima facie case of ineffective assistance of counsel in this respect and concluded that no evidentiary hearing was required.
The PCR judge reviewed the plea hearing and plea form and concluded that they clearly established that the plea was knowing and voluntary, contrary to defendant's contentions. He also noted that the plea form included the NERA supplemental plea form, which advised defendant of the consequences of a crime subject to the NERA, and concluded that he was aware of same. The judge observed that defendant did not seek any relief from his plea and sentence for almost five years and concluded that there was no merit to the claim based on the plea form and plea transcript.
With respect to the NERA issue, the PCR judge discussed the law extant at the time of sentencing, June 23, 2000, including the 1997 version of the NERA (applying the NERA to "any crime in which the actor . . . uses or threatens the immediate use of a deadly weapon"); Grawe, supra, 327 N.J. Super. at 593 (holding that the intent and conduct of the defendant, not the victim, controls for NERA sentencing purposes when death or serious bodily injury were not caused); and State v. Perez, 331 N.J. Super. 497, 504-05 (Law Div. 2000) (holding that a temporarily inoperable weapon was ...