On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 02-07-0377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Waugh.
Defendant pled guilty to an accusation charging robbery, N.J.S.A. 2C:15-1, in exchange for a recommended maximum sentence of eight years in the custody of the Commissioner of Corrections with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1 The negotiated disposition also included the prosecutor's recommendation that the sentence be imposed concurrent to another sentence for a violation of probation in Camden County and for dismissal of "all remaining charges in Gloucester County."*fn2 Defendant was sentenced pursuant to a negotiated plea to the custody of the Commissioner of Corrections for eight years, with six years, nine months and twenty-two days to be served before parole eligibility under NERA. The sentence was made concurrent to the sentence imposed in Camden County. No period of parole supervision was embodied in the judgment, but there is no cross- appeal. We affirmed the judgment and sentence on the sentence oral argument calendar.
Defendant now appeals from the denial on July 18, 2006, of his petition for post-conviction relief (PCR). He argues that "the court erred in denying defendant's argument that trial counsel failed to fully explain the consequences of NERA and in failing to order a materiality hearing" and that it also "erred in failing to grant an evidentiary hearing as to defendant's claim of ineffective assistance of counsel."*fn3
The record reveals that, after initially being unable to enter a guilty plea, defendant accepted the negotiated disposition.*fn4 The defendant was examined under oath by the judge and expressly waived his right to indictment and trial by jury and agreed to plead guilty to an accusation. The defendant acknowledged that he was on medication at the time, but stated that he understood everything that was going on in the proceedings. He stated that he was pleading guilty because he was guilty, that no one forced him to plead guilty, and that he was "satisfied with the advice [his] attorney has given [him]."
He also indicated that he had reviewed the plea form and answered "all [the] questions truthfully," and that he was pleading guilty to a crime which had an exposure of twenty years in state prison.
In giving his factual basis for a plea, defendant indicated that he was "on certain substances at the time" of the offense,*fn5 but stated that it was his "purpose" "to ask the judge to accept the representations contained in [his] statement to the police and in the discovery." Defendant acknowledged the report that he had "a piece of wood" "to help accomplish the robbery" of a Mobil station in Woodbury and that the "piece of wood" was in the shape of a "rifle." However, defendant was unable to give a factual basis from his own recollection, and defense counsel stated "we are attempting to accommodate my client's request" but that "he knows that if he is not guilty he cannot and should not plead guilty"; "that if he chooses not to waive his right to an intoxication defense, then he shouldn't be doing any of this at all," and that "[i]f, on the other hand, he wants to waive his right to an intoxication defense, he has that option if he so chooses."
After a recess, the defendant was asked by his counsel if he understood that he "cannot plead guilty unless" he was "really guilty," to which he answered "yes." Thereupon, the following colloquy occurred:
Q: Do you understand that the Judge wasn't there. He didn't know what happened. I wasn't there. I don't know what happened. The Prosecutor wasn't there. She doesn't know what happened. We can only go with what you say and what's in the police reports; do you understand that?
Q: Now, is it your desire -- in other words, do you want me, as your lawyer, to try to help you to ...