On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 98-10-0966.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Stern and A. A. Rodríguez.
Defendant Michael Bell appeals from the April 4, 2005 order denying his petition for post-conviction relief (PCR) and the March 7, 2006 order denying his motion for a new trial and to correct an illegal sentence. He also challenges his sentence. We affirm the denial of PCR, but remand for re-sentencing.
In 2001, following a jury trial, defendant was convicted of several counts of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (counts 1, 3, 5, 7, 9, 11, 13 and 15); third-degree distribution of CDS, N.J.S.A. 2C:35-5b(3) (counts 2, 4, 6, 8 and 10); second-degree distribution of CDS, N.J.S.A. 2C:35-5b(2) (counts 12 and 14); and first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(1) (count 16). Judge Joseph P. Testa merged counts 1, 3, 5, 7, 9, 11 and 13 and imposed a life term with a twenty-five year period of parole ineligibility, concurrent to a ten-year term for the second-degree distribution charges and concurrent to a five-year term for the third-degree distribution charges. We affirmed on direct appeal. State v. Bell, No. A-4935-00T3 (App. Div. June 30, 2003), certif. denied, 178 N.J. 251 (2003).
The facts surrounding the offenses are set forth fully in our opinion on direct appeal. The salient points are that in 1998, an informant, Nestor Andrasz, Jr., told Cumberland County Sheriff's Sergeant Paul LaValle, that defendant was trafficking in cocaine. As a result, LaValle arranged for several controlled purchases from defendant. One was for half an ounce of cocaine for $450 at defendant's home. There were six more purchases at various locations, two of which were at defendant's home. After the final sale, LaValle prepared an affidavit to obtain a search warrant for defendant's home. However, Investigator Brian Facemeyer received information that defendant would be traveling to Philadelphia in either his Lexus or Andrasz's Nissan. The officers decided to stop defendant and Andrasz upon their return.
According to the testimony developed at a hearing on a pretrial motion to suppress:
Vineland Police Detective Joseph Valentine, was part of the surveillance team. Eventually, he saw defendant and Andrasz returning in the Nissan. Valentine stopped the Nissan as it neared defendant's home. Defendant was driving the Nissan. Andrasz was the passenger. When the vehicle was stopped, Andrasz ran away. Valentine tackled him to the ground. While on the ground, Andrasz told Valentine that the cocaine was hidden under the hood of his Nissan. Valentine relayed this information to a fellow officer, Captain John Mazzeo. Mazzeo opened the hood and removed a black package[*fn1 ] . . . [which] contained five and one-half ounces of cocaine. Defendant was arrested.
A search warrant was issued [for defendant's home]. Drug Enforcement Agent Mark Wassmuth recovered a bag of white rocky substance from a loose vent in defendant's home. It was later determined that the bag contained twenty-four grams of cocaine.
Judge George H. Stanger, Jr. denied defendant's motion, finding probable cause to stop the Nissan and that the "automobile exception" justified the warrantless search of the Nissan.
Defendant filed a first PCR petition. Following oral argument, Judge Timothy G. Farrell issued a written opinion denying defendant's PCR petition without holding an evidentiary hearing. Judge Farrell found that: (1) an evidentiary hearing was not necessary because defendant failed to present a prima facie case on any of his claims; (2) defendant is barred pursuant to R. 3:22-5 from challenging the denial of his motion to suppress because the issue was adjudicated on direct appeal; (3) defendant's challenge to the extended-term sentence is barred for the same reasons, R. 3:22-4 & -5; and (4) defendant's ineffective assistance counsel claims are similarly barred because the alleged deficiencies were raised on direct appeal and to the extent they were not, they could have been raised.
Several months later, defendant moved pro se for a new trial and to correct an illegal sentence. Judge Farrell denied these motions and issued another written opinion. Judge Farrell found that the sentencing argument should have been made on direct appeal and was thus procedurally barred. Upon reviewing the video of the sentencing hearing, the judge found that his pronouncement was accurately reflected in the judgment of conviction, although the transcript is incorrect. Judge Farrell also rejected defendant's argument that his life sentence is unconstitutional, noting that he had previously rejected this same argument in the written opinion denying defendant's petition for PCR. Judge Farrell also denied the motion for a new trial as untimely ...