On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-01-00186.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Yannotti.
Defendant Darius Ingram appeals from an order entered on November 18, 2005, which denied his petition for post conviction relief. We affirm.
Defendant was charged under Essex County Indictment No. 90-5-2563 with first-degree robbery, contrary to N.J.S.A. 2C:15-1. He pled guilty to this charge on September 15, 1990 and the State agreed that defendant would be sentenced as a second-degree offender to a flat sentence not to exceed seven years. At the plea hearing, defendant stated that he committed a robbery on March 14, 1990 in downtown Newark. Defendant said that he asked the victim for change for a dollar. He stated that he "was digging down in [his] pants as if [he] had a gun." Defendant stated that his lawyer had explained the nature of the charges against him and the maximum number of years that he could be incarcerated on a first-degree crime. On December 17, 1990, the judge sentenced defendant to a seven-year term of incarceration.*fn1
Defendant next was charged under Essex County Indictment No. 91-01-00186 with first-degree robbery, contrary to N.J.S.A. 2C:15-1; and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1). Defendant pled guilty on March 4, 1991. At the plea hearing, defendant stated that on November 3, 1990, he went into a store in Newark, struck a female store employee with his hand, took a bag containing money, and fled the store. The judge asked defendant whether he committed the robbery by inflicting or attempting to inflict serious bodily injury upon the store employee. Defendant's reply was, "[y]es."
Defendant additionally said that he had sufficient time to discuss the plea with his attorney and he was satisfied with the services provided by his counsel. He stated that he understood that the prosecutor would recommend a term of incarceration not to exceed twelve years and dismissal of the count charging aggravated assault. Defendant also stated that he had read and voluntarily signed the plea form.
Defendant was sentenced on March 5, 1991 to twelve years of incarceration for the first-degree robbery charge. The judge ordered that the sentence be served concurrent, but not co-terminus, with the sentence previously imposed on Indictment No. 90-5-2563. The judge also dismissed the count charging aggravated assault. Defendant did not appeal the conviction or sentence.
Thereafter, defendant was charged under Burlington County Indictment No. 96-05-440-I with various offenses. He was tried before a jury, which found him guilty of second-degree conspiracy, contrary to N.J.S.A. 2C:5-2; first-degree robbery, contrary to N.J.S.A. 2C:15-1a(1); and second-degree eluding, contrary to N.J.S.A. 2C:29-2b. At sentencing, the judge merged the conviction for conspiracy with the conviction for first-degree robbery. Because this was defendant's third conviction for first-degree robbery, the trial court sentenced defendant to life imprisonment without parole pursuant to the so-called "three strikes" law, N.J.S.A. 2C:43-7.1a. In addition, the trial court sentenced defendant to a concurrent term of ten years on the eluding conviction.
Defendant filed a notice of appeal and raised the following issues:
INADEQUATE JURY INSTRUCTIONS ON FIRST-DEGREE ROBBERY, WHICH FAILED TO EXPLAIN THE INVOLVEMENT OF A DEADLY WEAPON WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. ART I., PARS. 1, 9, 10. (NOT RAISED BELOW).
BECAUSE DEFENDANT'S TWO PRIOR ROBBERY OFFENSES RESULTED IN ONLY A SINGLE PERIOD OF INCARCERATION, DEFENDANT WAS NOT ELIGIBLE FOR SENTENCING UNDER THE "THREE STRIKES LAW" AND THE IMPOSITION OF AN EXTENDED LIFE TERM WITHOUT PAROLE VIOLATED HIS RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. ART I. PARS. 1, 9, 10.
THE MANDATORY EXTENDED TERM SENTENCE OF LIFE WITHOUT PAROLE IMPOSED UNDER NEW JERSEY'S "THREE STRIKES LAW", N.J.S.A. 2C:43-7.1a, CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT. U.S. CONST. AMENDS. VIII, XIV; N.J. CONST. ART. I, PAR. 12.
We affirmed the convictions and the sentences imposed. State v. Ingram, No. A-841-97 (App. Div. October 26, 1999). Defendant filed a petition for certification with the Supreme Court. The petition was denied. State v. Ingram, 163 N.J. 78 (2000).
Defendant filed his first petition for post conviction relief, which the trial court denied by order entered on October 5, 2000. Defendant appealed and raised the following issues:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS PREVIOUS TRIAL ATTORNEY IN ESSEX COUNTY WHEN HE FAILED TO MOVE TO CONSOLIDATE THE TWO ROBBERY INDICTMENTS THAT WERE PENDING SO THAT THE DEFENDANT WOULD HAVE HAD ONE CONVICTION FOR ROBBERY AND THEREBY MAKING THE THREE STRIKES LAW INAPPLICABLE TO THIS CASE.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL WHEN NEITHER ATTORNEY ARGUED THAT DEFENDANT HAD ONLY ONE PRIOR FIRST-DEGREE ROBBERY CONVICTION AND ONE SECOND DEGREE ROBBERY CONVICTION AND THEREBY MAKING N.J.S.A. 2C:43-7.1a INAPPLICABLE TO THIS CASE.
DEFENDANT'S LIFE SENTENCE WITHOUT PAROLE SHOULD BE VACATED BECAUSE THIS SENTENCE WAS IMPOSED WITHOUT AFFORDING THE DEFENDANT A HEARING AS REQUIRED BY N.J.S.A. 2C:43-7.1d.
DEFENDANT'S FIRST DEGREE ROBBERY CONVICTION SHOULD BE VACATED AND BECAUSE THERE WAS NO EVIDENCE THAT DEFENDANT POSSESSED A WEAPON IN THE COMMISSION OF THIS OFFENSE (NOT RAISED AT POST-CONVICTION RELIEF HEARING).
We affirmed the denial of post conviction relief. State v. Ingram, No. A-1733-00 (App. Div. March 25, 2002). Defendant's petition for certification was denied. State v. Ingram, 174 N.J. 42 (2002).
On December 27, 2002, defendant filed a motion to vacate his plea to first-degree robbery as charged in Indictment No. 91-01-00186, and to correct an allegedly illegal sentence that was imposed as a result of that plea. In a certification in support of his motions, defendant asserted that he was "ignorant of the true nature of the charges against" him when he entered his plea. Defendant stated that on the day of the plea hearing, his attorney advised him to plead guilty. He said that he put his name on the plea form, which he claimed had already been filled out.
Defendant also stated that his counsel told him to say that he understood what he was doing but defendant maintained that he did not know the difference between first-degree robbery and second-degree robbery. He asserted:
[h]ad I known the difference between these two charges, I would not have pleaded guilty to first-degree robbery because I did not have a weapon or threaten the immediate use of a deadly weapon nor did I inflict or attempt to inflict serious bodily injury on the victim. As I stated at the ...