On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1841.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, C.S. Fisher and C.L. Miniman.
This is an appeal from the denial of defendant's petition for post-conviction relief. Because we are satisfied that defendant was mistakenly denied an evidentiary hearing, we reverse and remand for further proceedings.
Defendant was indicted and charged with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; two counts of first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a).
On July 21, 2003, defendant entered a plea of guilty to conspiracy, both counts of robbery, and possession of a handgun without a permit in exchange for the State's dismissal of the other charges and recommendation of a ten-year term. The trial judge accepted the plea and scheduled a sentencing hearing for September 22, 2003.
On the scheduled sentencing date set, defendant advised that he wished to withdraw his guilty plea. The trial judge adjourned the matter to afford defendant the opportunity to obtain a transcript of the plea proceeding.
On October 14, 2003, the adjourned sentencing date, defense counsel advised the court that defendant was persisting in his desire to withdraw his guilty plea although his counsel clearly suggested that there was no basis in fact for the relief his client sought:
[DEFENSE COUNSEL]: Judge, when we were here the last time, which was the original date for sentence in this matter, [defendant] indicated, to me, that he wanted to have his plea taken back. And he indicated, at that time, that he thought there was a problem with the plea and he didn't articulate to me specifically what that was. But; nonetheless, I ordered a copy of the transcript. I provided him a copy of the transcript. It indicates that the plea entered on July the 21st of this year, it does not appear to me, in the body of the transcript, that there's anything in there that would suggest a basis in the transcript itself for the plea to be taken back.
However, speaking with [defendant], today, he's indicated, to me, he wants to take his plea back. And his contention is that I misled him, even though our discussions obviously do not reflect itself in the body of the plea transcript. And his position is, because he claims I misled him, that he was deprived effective representation of [c]counsel.
Judge, when a client tells me that it's his view that I improperly represented him, as an [o]fficer of the [c]court, I believe it's my obligation to make an application to withdraw and in fact to have [p]ool [c]counsel assigned, so that this issue could be properly litigated. And that's what I would do at this point.
The judge asked defendant if he had anything to say; defendant indicated he did not. The judge then rejected defendant's application for the withdrawal of his guilty plea by referring to the plea transcript, which the judge interpreted as failing to reveal that defendant had indicated his dissatisfaction with counsel's services.
At that point in the proceeding, defense counsel indicated a desire "to clarify the issue," by stating that defendant had told him that he anticipated "a sentence far less than the negotiated plea, either 5 or 7 years." The judge responded that there was "no basis for that belief" and that he had also, on the record, told defendant what the plea agreement was and the term to which defendant would be sentenced. The judge thus viewed the application to ...