On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 91-06-1676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Stern and A.A. Rodríguez.
We reversed the denial of defendant's petition for post- conviction relief ("PCR") in light of State v. Rue, 175 N.J. 1 (2002), and remanded for appointment of new counsel and further proceedings on the petition. Defendant was denied PCR again, and now argues he was improperly denied PCR based on ineffective assistance of trial counsel, particularly in the absence of an evidentiary hearing.
After a trial, defendant received an aggregate sentence of sixty-eight years in the custody of the Commissioner of the Department of Corrections, with fifty years before parole eligibility, for aggravated sexual assault and two counts of kidnapping imposed consecutively and other offenses for which concurrent sentences were imposed. Each of the consecutive sentences involved a different victim. However, on defendant's direct appeal, we modified the sentence in light of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), to require one of the consecutive sentences to be served concurrently with one of the kidnapping convictions, so that the aggregate sentence became fifty years with fifty years to be served before parole eligibility. The ineligibility terms were mandatory on each kidnapping conviction, and defendant conceded that. The proceedings on the PCR petition followed our affirmance of the conviction and modification of the sentence imposed. Defendant raises the issue we expressly permitted him to raise on the PCR remand - that counsel did not properly advise defendant with respect to the plea offer, particularly given counsel's alleged failure to explain the impact of the DNA evidence on the strength of the State's case. His petition asserted he was denied "effective assistance of counsel because [counsel] did not properly explain the State's evidence against [defendant] when [he] rejected the State's final plea offer." The petition asserts if he "would have understood what D.N.A. evidence was and how incriminating this evidence is I would have understood that going to trial would have been tantamount [to] legal suicide."*fn1
Defendant claims he is entitled to a "a new trial." Even if his factual assertions are true, the remedy would not be a new trial. However, in light of our disposition, the issue of any remedy, if the judge would not now accept the plea recommendation, need not be considered.
Defendant further contends he is entitled to an evidentiary hearing and "trial counsel should be called to testify to describe the information he provided . . . regarding DNA evidence and its value," and that testimony from both trial counsel and defendant is also necessary "in order to assess the decision making process with respect to the decision to accept a plea bargain." Because the DNA testimony and plea offer were discussed at the pretrial conference in August 1992, the State asserts the petition is inadequate and cannot be read to support defendant's claims. It also asserts that "it is incumbent upon the defendant to set forth with some specificity what his attorney said to him about the evidence."
For sure, the State is correct that a defendant cannot reevaluate his decision to go to trial merely by claiming that counsel had to say something else or something more in advance of a plea cut-off. Hence, we agree with the State that something more is required than "conclusory statements" of the defendant after the trial is over, and the question before us is whether defendant alleged enough in his PCR petition to obtain an evidentiary hearing. The time since the trial, or its remoteness, and the length of the sentence may affect his burden of a prima facie showing, see State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999), but is not dispositive. See also State v. Taccetta, 351 N.J. Super. 196, (App. Div.), certif. denied, 174 N.J. 544 (2002).
As the PCR judge noted, the record of the pretrial conference is inconsistent with what was alleged in the petition. It reveals the following discussion:
THE COURT: Okay. Mr. Ardis, Judge Greenberg's philosophy is such, since he will be the judge that will provide over the trial, is such, so it is clear to you, that he will not accept any plea agreement after a matter is placed on his trial list. In other words, after today should the matter be put on the trial list, should you desire to plead guilty or should you be found guilty, the sentence would be left solely to the discretion of the judge. In other words, the judge would not be bound by any agreement that you with the assistance of your attorney and the prosecutor may agree to. Do you understand?