On appeal from the Superior Court of new Jersey, Law Division, Bergen County, 98-12-2396-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2007
Before Judges Coburn and Grall.
Defendant appeals from the denial of his petition for post-conviction relief. We affirm.
In December 1998, an indictment was returned charging defendant and his co-defendant, Christopher Blair, with two counts of first degree kidnapping, N.J.S.A. 2C:13-1(a) (count one) and N.J.S.A. 2C:13-01(b) (count two); first degree robbery, N.J.S.A. 2C:15-1(count three); third degree criminal restraint, N.J.S.A. 2C:13-2 (count four); third degree possession of a weapon with a purpose to use it unlawfully against the person or property of another N.J.S.A. 2C:39-4(d) (count five); fourth degree possession of a weapon in manifestly inappropriate circumstances, N.J.S.A. 2C:39-5(d) (count six); third degree threat to kill, N.J.S.A. 2C:12-3(b) (count seven); third degree terroristic threat, N.J.S.A. 2C:12-2(a) (eight count); and fourth degree theft from a person, N.J.S.A. 2C:21-6(c)(count nine). The indictment further charged that the crimes alleged within the first three counts were in the circumstances alleged subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, as written before the amendment enacted by L. 2001, c. 129, effective June 29, 2001, which amendment is inapplicable here. State v. Parolin, 171 N.J. 223, 233 (2002).
On March 20, 2000, defendant negotiated a plea with the State, allowing him to dispose of all charges in the indictment by pleading guilty to first degree kidnapping and first degree armed robbery with a maximum prison sentence of eighteen years, with no parole for 85 percent of the term pursuant to NERA.
On June 30, 2000, the trial judge sentenced defendant to an eighteen year NERA term on the first count and a concurrent fifteen year NERA term on the third count. Thus, the aggregate sentence was eighteen years in prison with 85 percent to be served without parole. Defendant appealed, arguing that the sentence was excessive. We affirmed by an order dated March 30, 2004.
Defendant filed his petition for post-conviction relief on January 19, 2006, arguing that the sentence he received was illegal because his factual basis did not show that he or Blair used or threatened the immediate use of a deadly weapon, as then required by N.J.S.A. 2C:43-7.2(d).
While pleading guilty, defendant admitted that during the kidnapping and robbery Blair had a knife in his hand while he and Blair were in the victim's kitchen, although the victim was then tied up in another room upstairs. He also admitted that after tying the female victim up in her apartment and taking some of her property, he and Blair brought her down to a car and placed her in the back seat. Defendant sat next to the victim, who was no longer tied up. While Blair "put it [the knife] in a little compartment behind the driver's seat . . .," defendant was "concentrating on the victim" and did not see him do that. However, when asked whether the "purpose of the knife being placed in there was to threaten her . . .," defendant said, "Didn't I say yeah?" The judge paraphrased the answer, noting that defendant "said it was there because just in case she stepped out of line, that was why the knife was in there for if I heard him correctly." The judge then asked, "Is that correct, Mr. Feeley?" Defendant replied, "Yes, sir."
We are satisfied that the judge was entitled to infer from the above statements that although defendant did not watch as Blair put the knife in the compartment, the victim did, and defendant knew what Blair was doing and that the victim was watching him. The judge was also entitled to take into account defendant's knowledge that this was done to keep the victim under control. Since the weapon was both used and its immediate use was threatened, the factual basis was adequate.
Although the State argues that the petition is time-barred by R. 3:22-12(a), the only basis for its argument is that since the factual basis was adequate, the sentence was not illegal.
Defendant relies on State v. Mitchell, 126 N.J. 565, 577 (1992), in support of his claim that the alleged lack of factual basis made the sentence illegal. The Mitchell Court observed that a trial "court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis." Ibid. The Court then added that "[a] factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." Ibid. (citations omitted).
Although defendant's plea remarks show that he was denying that he personally used or threatened the immediate use of the knife, read fairly, they do show that he was aware that the knife was being used by his accomplice in his presence to keep the victim under control. ...