On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-08-1074.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2008
Before Judges Stern and Payne.
We affirm the order denying defendant's petition for post-conviction relief (PCR).
Defendant pled guilty to a count of first-degree robbery embodied in each of two indictments, in exchange for the dismissal of the balance of the indictments and another indictment and recommended maximum concurrent sentences of eighteen years in custody of the Commissioner of the Department of Corrections with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA). He received the recommended sentence.
Defendant argues that his counsel was ineffective and that he is entitled to an evidentiary hearing to develop the issue. While he asserts that he expected a lesser sentence, and counsel was ineffective for not investigating and producing evidence of duress,*fn1 and by not timely presenting evidence and letters in support of a lesser sentence, the sentence was legal and consistent with the negotiated plea, and the length of the sentence itself is therefore not cognizable on PCR. See R. 3:22-2(c); State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). Moreover, the PCR judge's opinion said that "defense counsel did, indeed, present mitigating factors and letters at sentencing," and the record supports that finding. Moreover, defendant did not seek to withdraw his plea because of an expectation of a lower sentence or otherwise and does not seek to withdraw the plea now. He points to no material fact or conduct of counsel which affected his decision to plead guilty. See, e.g., State v. Johnson, 182 N.J. 232, 244 (2005).
Defendant was involved in two armed robberies with a BB gun. His counsel negotiated for concurrent sentences and dismissal of other charges. As noted, the PCR judge found from the record that counsel did assert both the claim of duress and presented letters in mitigation of sentence. Defense counsel also argued, consistent with the right reserved in the negotiated plea, that there were "mitigating factors" and "particular circumstances of the offense, being consistent with the duress he was feeling at the time." On the other hand, defendant was extended time eligible.
The order denying PCR is affirmed substantially for the reasons expressed by Judge Thomas P. Kelly in his oral opinion of May 7, 2007. See also Hill v. Lockhart, 474 ...