On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-02-0384.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Stern and C.S. Fisher.
At the conclusion of a trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree criminal restraint, N.J.S.A. 2C:13-2(a). He was sentenced on the robbery conviction to a seventeen-year prison term, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and with a five-year period of parole supervision upon release. He was also sentenced on the criminal restraint conviction to a five-year prison term, to run concurrently to the robbery sentence.
Defendant appealed, and we affirmed by way of an unpublished opinion filed on December 31, 2003. Docket No. A-6512-01T4. Defendant's petition for certification was denied on March 2, 2004. 179 N.J. 369 (2004).
Defendant filed a pro se petition for post-conviction relief (PCR), which was later supplemented by a brief filed by the Public Defender's Office. After hearing the argument of counsel, Judge Patricia Del Bueno Cleary denied the PCR petition.
Defendant appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT ESTABLISHED THAT HIS TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PROPERLY ADVISE HIM DURING PLEA NEGOTIATIONS ON HIS SENTENCING EXPOSURE.
II. IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
In determining whether an accused has been deprived of the constitutional right to the effective assistance of counsel, we apply the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). This test was also adopted as the means for determining when the performance of counsel offends our state constitution. State v. Fritz, 105 N.J. 42 (1987). This test requires that it first be ascertained whether "counsel's representation fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and, if so, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. As the Court later observed, the "prejudice" requirement of the second aspect of the test "was based on our conclusion that '[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed. 2d 203, 209 (1985) (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 696).
Defendant argues that his attorney failed to adequately advise him of his exposure when he rejected a plea offer prior to trial. In her oral decision denying the PCR petition, Judge Cleary alluded to the transcript of a hearing on July 31, 2000, when defendant rejected a plea offer that would have resulted in a seven-year prison term with an 85% period of parole ineligibility. On that earlier occasion, Judge Cleary told defendant that if he went to trial he "would be facing 71 1/2 years" and that he could be convicted of an offense that would require imposition of an 85% period of parole ineligibility. We have carefully reviewed the transcript of the plea cut-off proceeding of July 31, 2000, and we are satisfied that Judge Cleary thoroughly explained to defendant his exposure if convicted; we are also satisfied that defendant had a full and fair opportunity to weigh these consequences prior to rejecting the plea offer. Accordingly, any alleged deficiency ...