September 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY THOMAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 01-10-0918.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2007
Before Judges Skillman and Yannotti.
Defendant was indicted together with Eric Matthews and another co-defendant for armed robbery, in violation of N.J.S.A. 2C:15-1a(1), and other offenses. Defendant entered into a plea agreement with the State, one of the key terms of which was that he would testify against Matthews in exchange for a lesser sentence. The plea form signed by defendant states:
Sentence in discretion of Court. The Prosecutor has represented that if defendant cooperates and testifies truthfully at the trial of [co-defendant] Eric Matthews, she will not seek [an] extended term and will seek a sentence as a 2d degree offender. If defendant fails to cooperate, the prosecutor reserves the right to seek the maximum possible sentence and will file a motion for an extended term.
When defendant entered his plea agreement on the record, the trial court reiterated the terms of the plea agreement:
THE COURT: So the State, as part of this plea today, if you testify truthfully against Mr. Eric Matthews, they will not seek an extended term. But if you do not testify truthfully, they will seek an extended term. Or, in the alternative, they're going to ask for 20 years, must do 85 percent, which is the maximum that you can get under the first-degree conviction. Do you understand that, sir?
THE DEFENDANT: Yes.
THE COURT: Any questions about that?
THE DEFENDANT: No.
The judge asked defendant whether he had sufficient time to discuss the plea with his attorney, and defendant said that he had.
The Court then again went through the terms of the plea agreement and asked defendant to explain them in his own words. Defendant responded by explaining each term of the agreement including his obligations under the agreement, the minimum and maximum sentences, and the penalties he faced for not cooperating:
[DEFENDANT]: My understanding is I'm pleading guilty to first-degree robbery for a crime that I committed. My understanding is if ---
[COURT]: And you're doing so without a recommendation?
[DEFENDANT]:I'm doing so without a recommendation from the State. And my Plea Agreement is to testify on my co-defendant which is Eric Matthews. And if my testimony is what it's supposed to be, that the --that the State will allow me to be sentenced to a lower term than what I'm eligible for. The highest term I'm eligible for is 30 --64 years. I understand the Plea Agreement, Your Honor.
After pleading guilty, defendant absconded and failed to testify at Matthews' trial.
At sentencing following his apprehension, defendant moved to withdraw his guilty plea on the ground that he was under the influence of marijuana and therefore did not understand what was happening when he entered the plea. The trial court denied the motion, finding that there was no evidence defendant was under the influence of marijuana or that he failed to comprehend what he was doing when he entered the plea.
The trial court then denied the State's motion for an extended term and sentenced defendant to a twenty-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We heard defendant's appeal on an excess sentence calendar, see R. 2:9-11, and affirmed the judgment of conviction memorializing this sentence. State v. Thomas, No. A-499-03T4 (April 28, 2004).
Defendant filed a petition for post-conviction relief alleging ineffective assistance of trial and appellate counsel. The trial court denied the petition by oral opinion delivered on March 10, 2006.
On appeal, defendant presents the following argument:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS, OR IN THE ALTERNATIVE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD.
We reject this argument and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Farrell's comprehensive oral opinion. Defendant's argument does not warrant any additional discussion. R. 2:11- 3(e)(2).
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