October 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH ALLEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 01-07-0841-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Stern and Waugh.
Defendant pled guilty to conspiracy to commit controlled dangerous substances (CDS) offenses and CDS offenses in an indictment and two accusations. The negotiated disposition was for a sentence of twenty-four years in the custody of the Commissioner of Corrections with five years to be served before parole eligibility. Defendant received that sentence but we ordered the merger of conspiracy offenses on defendant's direct appeal. The merger did not affect the aggregate sentence. Numerous other charges were dismissed.
Defendant petitioned for post-conviction relief (PCR) claiming that he did not understand the difference between a concurrent and consecutive sentence. He argues that if he had been properly advised of the difference by his counsel, he would have requested his attorney to "attempt to negotiate a more favorable concurrent term."*fn1 He also contends he was entitled to an evidentiary hearing to develop his claim.
Defendant may be academically correct in contending that counsel may be ineffective if he or she does not explain the difference between concurrent and consecutive sentences and the possibility of the imposition of a consecutive sentence. The record before us contains no statement or certification of defendant that he would not have entered the plea, which was beneficial to him, if counsel had reviewed the difference between concurrent and consecutive sentences. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985); cf. State v. Johnson, 182 N.J. 232 (2005) (materiality must be demonstrated to withdraw a guilty plea). In any event, irrespective of what may have been presented in the petition which is not in defendant's appendix,*fn2 in this case the plea form expressly refers to "consecutive" sentences necessary to achieve the recommended sentence of "24 [years] NJSP with 5 [years] parole ineligibility," and defendant expressly acknowledged the negotiated sentence recommendation, which was the aggregate sentence imposed.
Accordingly, this record does not permit the granting of PCR based on the argument made.
We affirm the denial of PCR substantially for the reasons expressed by Judge Salem V. Ahto in his oral opinion of March 19, 2007, as supplemented herein.