On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-01-0021.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Fuentes and Grall.
On September 14, 2001, defendant Reginald Fitzpatrick pled guilty to one count of aggravated manslaughter, N.J.S.A. 2C:11- 4(a). Pursuant to the negotiated plea agreement,*fn1 the State agreed to seek a sentence not to exceed a term of twenty years, subject to an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On October 26, 2001, the trial court sentenced defendant to a term of sixteen years, with an 85% period of parole ineligibility pursuant to NERA. Thereafter, defendant filed a direct appeal and appeared, through counsel, at our excessive sentencing calendar on June 5, 2003. Defense counsel specifically raised the following two issues before the panel:
[Defendant] is asking for a remand under State v. Freundenberger, [358 N.J. Super. 162 (App. Div. 2003)], because the Court did not inform him of the full parole consequences of the NERA term and specifically that he could actually serve more time in prison than the sentence the Court imposed. He also asks the Court to consider reducing his sentence from 16 years to no more than 10 years.
The panel rejected this argument and affirmed the sentence imposed by the trial court. Thereafter, the Supreme Court denied defendant's petition for certification. State v. Fitzpatrick, 180 N.J. 458 (2004).
Defendant filed a post-conviction relief (PCR) petition on March 31, 2006. The trial court denied defendant's PCR petition in an order dated April 11, 2006. Defendant now appeals raising the following arguments.
THE WRITTEN PLEA AGREEMENT AS UNDERSTOOD BY THE DEFENDANT INVOLVED A 20 YEAR CAP ON THE SENTENCE. THE FAILURE OF PRIOR TRIAL AND APPELLATE COUNSEL TO ARGUE THAT THAT AGREEMENT SHOULD HAVE BEEN SPECIFICALLY ENFORCED WAS NOT COMPETENT.
COUNSEL MANIPULATED HIS CLIENT INTO PLEADING GUILTY BY MISLEADING DEFENDANT REGARDING ...