December 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENNIE PERRY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 00-01-0131.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Lintner and Parrillo.
This is an appeal from Judge Kennedy's denial of a petition for post-conviction relief (PCR) by defendant, Bennie Perry. Defendant was charged under Essex County Indictment 00-01-0131 with first-degree attempted murder, N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-1, N.J.S.A. 2C:2-6 (Count One); first-degree armed robbery, N.J.S.A. 2C:15-1, N.J.S.A. 2C:2-6 (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), N.J.S.A. 2C:2-6 (Count Three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, N.J.S.A. 2C:2-6 (Count Four), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, N.J.S.A. 2C:2-6 (Count Five).
Pursuant to a negotiated plea agreement, on August 28, 2000, defendant pled guilty to Counts Two, Three, and Four, and the State agreed to dismiss Counts One and Five, not to seek a discretionary extended-term sentence, and to recommend a sentence of ten years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). On December 8, 2000, defendant was sentenced in accordance with the plea agreement to an aggregate term of ten years of incarceration with a NERA period of parole ineligibility and five years of parole supervision following release.*fn1
Defendant did not file a direct appeal. Instead, on January 2, 2004, he filed a pro se PCR petition, asserting that the NERA sentence violated both the United States and New Jersey Constitutions. A supplemental brief was filed on behalf of defendant by PCR counsel, asserting that defendant (1) was entitled to a reduced period of parole ineligibility by reason of commutation and work credits earned during incarceration and (2) was denied effective assistance of counsel because counsel failed to raise appropriate mitigating factors and did not vigorously argue for imposition of a sentence less than the maximum allowed by the plea agreement.
On appeal, defendant raises the following points:
THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF. POINT TWO [DEFENDANT'S] PLEA MUST BE VACATED AND THE MATTER RETURNED TO THE TRIAL LIST.
Defendant argues that PCR counsel's concession that the opinion in State v. Webster, 383 N.J. Super. 432 (App. Div. 2006), aff'd, 190 N.J. 305 (2007),*fn2 was dispositive concerning his non-eligibility for commutation and work credits for the time served during the NERA parole disqualifier amounted to ineffective assistance of counsel. He also asserts that his trial counsel's failure to raise mitigating factors 10, 11, and 12, under N.J.S.A. 2C:44-1b, represented ineffective assistance of counsel. Finally, defendant argues that he should be permitted to vacate his plea because he believed that commutation credits would reduce his NERA parole disqualifier. We are satisfied from our careful review of the entire record that defendant's factual and legal arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we make the following brief observations.
At the PCR hearing, Judge Kennedy pointed out that our decision in Webster (holding that commutation and work credits cannot be used to reduce the NERA mandatory-minimum-sentence provision, thus making the defendant ineligible for parole during the first eighty-five percent of the imposed sentence) was dispositive.
Judge Kennedy also noted that defendant's assertion that he received ineffective assistance of counsel at sentencing was, in reality, a claim that his sentence was excessive, therefore, cognizable on direct appeal, and barred from presentation on a PCR under R. 3:22-4. Judge Kennedy also found that mitigating factors 10, 11, and 12 did not apply and sentencing counsel's failure to raise them was not deficient. Beyond that, Judge Kennedy noted that defendant received a minimum sentence for his first-degree offense and, thus, the failure to raise mitigating factors would not have made a difference.
Finally, defendant's assertion, raised for the first time on appeal, that his sentence should be vacated because he did not understand that he would have to serve his NERA parole disqualifier, is belied by the record. At his plea hearing, defendant specifically acknowledged his signature on the NERA supplemental plea form respecting his awareness that he would not be eligible for parole for eight and one-half years and that that period "cannot be reduced by good time, work or minimum custody credits" and was subject to a period of five years of parole supervision on the first-degree offense. We affirm substantially for the reasons expressed by Judge Kennedy in his April 21, 2006, bench opinion.