On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, 00-02-0500, 00-02-0728, and 99-02-2140.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 9, 2007
Before Judges Collester and C.L. Miniman.
Defendant Antoine Lennon appeals from the denial of his application for post-conviction relief (PCR) with respect to the sentence imposed on October 13, 2000. He contends that he was entitled to a hearing before the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, could be applied to his sentence. We affirm.
Defendant was charged with a variety of offenses in three separate Camden County indictments. In Indictment #2140-6-99 (the CDS indictment), he was charged with third-degree possession of a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35-10(a)(1) (count one) and second-degree possession of a CDS with intent to distribute in violation of N.J.S.A. 2C:35-5(b)(2) (count two). In Indictment #500-02-00 (the armed-robbery indictment), he was charged with first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (count one) and third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count two). Finally, in Indictment 728-02-00 (the nine-count indictment), he was charged with armed robbery in violation of N.J.S.A. 2C:15-1 (count one), second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count two), third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count three), third-degree terroristic threats in violation of N.J.S.A. 2C:12-3(a) (count four), fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(4) (count five), first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (count six), second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count seven), third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count eight) and fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(4) (count nine).
A plea agreement was negotiated and defendant appeared at a plea hearing on July 10, 2000. Defendant agreed to plead guilty to count two of the CDS indictment (possession of a CDS with intent to distribute), count one of the armed robbery indictment (armed robbery) and counts one and six of the nine-count indictment (both armed robbery). In defendant's presence the State agreed to recommend an aggregate term of sixteen years in New Jersey State Prison of which eighty-five percent (thirteen years, seven months and nine days) would be served without parole pursuant to NERA. The sentence was to be concurrent to a sentence then being served in Atlantic County. The State also noted that defendant would be subject to five years of parole supervision pursuant to NERA. The defendant agreed to waive his right to appeal.
At the plea allocution defendant testified with respect to the CDS indictment that on April 2, 1999, he was in possession of more than half of an ounce of rock cocaine, which he intended to sell. He further testified with respect to the armed-robbery indictment that on November 13, 1999, he was in possession of a .25-caliber automatic pistol and that he instructed a taxicab driver, Sikander Manu, to take him to a designated location and he then "pulled a weapon on him, and demanded money." With respect the nine-count indictment, defendant testified that on October 30, 1999, he went to a gas station and pulled a weapon on the attendant, Arif Sohail, and demanded money. The weapon was the same handgun he used against Sikander Manu. Lastly, he testified that on November 14, 1999, he went back to the same gas station and again pulled the same weapon on the same attendant and demanded money. He admitted that he received money as a result of all three armed robberies and that, when he pulled out his weapon, he threatened the victims that he would use the weapon if they did not comply.
Defendant was sentenced on October 13, 2000. The prosecutor again noted that the sentences for armed robbery were subject to NERA with a mandatory eighty-five percent of the sentence to be served before parole and a five-year period of parole supervision. The judge sentenced defendant to sixteen concurrent years of prison on each of the first-degree armed robberies with no parole eligibility for thirteen years, seven months and nine days as well as five years of parole supervision thereafter. The judge explained, "Any time during that you violate parole, they can send you back to complete the sentence." On the second-degree CDS charge, the judge imposed a concurrent seven-year sentence.
On October 18, 2005, defendant filed the PCR application that is the subject of this appeal. He contended that the sentencing judge used aggravating factors to which he made no admission, and as a result he was sentenced to more than the presumptive term. This claim was later abandoned. Instead, counsel on defendant's behalf argued in a supporting brief that defendant "was denied his due process rights in that there was never a separate pre-sentencing hearing to determine whether his offenses actually were determined to be under the NERA."
The State urged that the PCR petition had to be filed by October 13, 2005, and, if the petition was filed thereafter, it was barred by R. 3:22-12. The State also argued that under R. 3:22-4 the issues could have been raised on direct appeal and thus were barred. On the merits, the State argued that the facts admitted at the plea allocution triggered application of NERA, because defendant admitted that he had a .25-caliber automatic pistol and nothing in the record suggested that it was inoperable. As a consequence, the State argued, no separate hearing was required.
The PCR judge made no ruling on the timeliness of the PCR petition because he could not determine from the record before him when it was filed. He concluded that the petition was not barred because the issues could have been raised on direct appeal. He determined that the hearing requirement of the version of NERA in effect in 1999 was satisfied by the defendant's own sworn testimony during the plea allocution, citing State v. Parolin, 171 N.J. 223 (2002). The judge accordingly denied the PCR petition. This timely appeal followed.
Defendant raises the following issues for our consideration:
POINT I THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS NOT TIME BARRED UNDER RULE 3:22-12 AND WAS NOT PROCEDURALLY BARRED UNDER RULE 3:22-4 BECAUSE THE DEFENDANT ESTABLISHED CERTAIN ...