March 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HUMBERTO HERRERA SALAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, No. 01-02-457.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2008
Before Judges Wefing and R. B. Coleman.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was originally charged with two counts of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1). He eventually entered a negotiated plea of guilty to two counts of aggravated manslaughter. Under the terms of the plea bargain, the State agreed to recommend that defendant not receive a sentence in excess of twenty-five years. At sentencing, the trial court sentenced defendant to twenty-two years in prison on each count, to be served concurrently. The trial court noted that its sentence was subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant appealed his sentence. His appeal was heard on an Excessive Sentence Oral Argument calendar, and his sentence was affirmed as not manifestly excessive or unduly punitive. State v. Herrera Salas, No. A-1761-02T4 (App. Div. June 5, 2003).
Defendant filed a timely petition for PCR in which he alleged that because of language difficulties he had not fully understood the plea proceedings and that his trial attorney was ineffective. Counsel was assigned to represent defendant and prepared and filed a brief on his behalf and orally argued his petition before the trial court. Defendant appeals from the order denying his petition.
Defendant, after a night of drinking at several establishments, got into his vehicle. He backed up and struck another vehicle in the parking lot. After that collision, his companion refused to ride with defendant and got out of the car. Defendant drove off, leaving behind people in the parking lot who had witnessed the collision screaming at him to stop. He turned onto Route 130, heading south in the northbound lane. He struck another vehicle head on, killing the driver Patricia Reed and her husband Robert and injuring their two passengers. Defendant had a blood alcohol level of .28.
Defendant raises the following arguments on appeal:
POINT ONE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.
POINT TWO THE COURT SHOULD HAVE SET ASIDE THE DEFENDANT'S PLEA AGREEMENT BECAUSE DEFENDANT DID NOT ENTER INTO THE AGREEMENT WITH FULL KNOWLEDGE AND CONSENT.
POINT THREE THE DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.
Our review of this matter is aided by the careful manner in which the trial court, which had taken defendant's plea and also sentenced defendant, conducted the hearing on defendant's petition, taking the testimony of both defendant and the attorney who represented him at trial. At the conclusion of that testimony, the trial court placed on the record the reasons why it rejected defendant's testimony and found it not credible. We have no basis to reject the trial court's credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999).
It is clear from that transcript that defendant was offered two options in terms of entering a plea of guilty: a recommendation by the State of twenty years in prison, subject to NERA, or an open plea, with no recommendation by the State but an agreement that the sentence could not exceed twenty-five years. Defendant, after conferring with his attorney, took the latter structure on the hope that his attorney would be able to convince the court to impose a sentence of less than twenty years. The court, however, was not persuaded and imposed a sentence of twenty-two years. Defendant is not entitled to relief because his hopes in that regard did not come to fruition.
In defendant's brief, he argues that the full ramifications of a sentence under NERA were not explained to him, in particular the implications of the parole provisions. We have held that a defendant must be made aware of these implications before entering a knowing and voluntary plea of guilty. State v. Freudenberger, 358 N.J. Super. 162 (App. Div. 2003). Defendant did not raise that issue before the trial court, and we decline to address it in the first instance. State v. Arthur, 184 N.J. 307, 327 (2005). The proper procedure, moreover, would be a motion to withdraw the guilty plea. Freudenberger, supra, 358 N.J. Super. at 170.
The order under review is affirmed.
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