On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 01-07-2238, 01-02-0587, 02-06-2160 and Accusation No. 01-10-3341.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges Reisner and Alvarez.
Defendant Albert Lopez appeals from a January 3, 2006 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On February 20, 2001, a Camden County grand jury issued Indictment No. 0587-02-01, charging defendant with twenty-six counts of third- and fourth-degree issuing or passing a bad check, N.J.S.A. 2C:21-5; twenty-six counts of third- and fourth-degree theft by deception, N.J.S.A. 2C:20-4; and one count of third-degree attempted theft by deception, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-4. On July 31, 2001, a Camden County grand jury issued a second indictment, No. 2238-07-01, charging defendant with one count of third-degree issuing or passing a bad check, N.J.S.A. 2C:21-5.
On October 31, 2001, defendant waived his right of indictment and consented to the entry of Accusation No. 3341-10-01, charging him with one count of second-degree theft by deception, N.J.S.A. 2C:20-4. Defendant simultaneously entered a guilty plea to the single count of Indictment No. 2238-07-01, the single count of the accusation, and thirteen counts of Indictment No. 0587-02-01. The plea was "open," that is, entered without a sentence recommendation by the State and with the understanding that defendant would be sentenced at the discretion of the court. The open plea was conditioned upon whether defendant was charged with new offenses while out on bail pending sentence. The terms of the plea included defendant's payment of restitution in the amount of $36,661.89 on the Indictment No. 0587-01-02 counts, $1500 as to the single count of Indictment No. 2238-07-01, and $102,826.36 as to Accusation No. 3341-10-01. If when he returned to be sentenced, defendant had no new charges filed against him, the plea bargain called for imposition of a seven-year sentence.
When defendant returned to court on February 19, 2002, he had been charged with new crimes. As a result, the judge sentenced defendant within the appropriate range to eight years on the second-degree theft by deception on Accusation No. 3341-10-01, concurrent four-year terms on the third-degree passing bad checks counts of Indictment No. 0587-02-01, concurrent twelve-month terms on the fourth-degree passing bad checks counts of Indictment No. 0587-02-01, and a concurrent four-year term on the single third-degree passing bad checks count of Indictment No. 2238-07-01. Thereafter, defendant filed a notice of appeal, and the matter was remanded for re-sentencing by consent. Defendant was re-sentenced to a seven-year aggregate term on December 17, 2002. The appeal was dismissed when a notice of withdrawal was received from defendant on January 21, 2003.
In the interim, defendant was again indicted by a Camden County grand jury. Indictment No. 2160-06-02 charged defendant with two counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one and seven); two counts of second-degree robbery, N.J.S.A. 2C:15-1 (counts five and eleven); three counts of third-degree theft from a person, N.J.S.A. 2C:20-3 (counts two, eight, and twelve); two counts of fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e) (counts three and nine); and four counts of fourth-degree impersonating a public servant, N.J.S.A. 2C:28-8(b) (counts four, six, ten, and thirteen).
On May 2, 2003, nearly four months after he withdrew his appeal on his first set of convictions, defendant entered a guilty plea to four amended counts of robbery on Indictment No. 2160-06-02. At the plea hearing, he was represented by a different attorney than the one who represented him on the earlier indictments. In exchange for his guilty pleas, the State agreed to recommend a seven-year sentence on each count subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently to each other and to the sentence that defendant was then serving. On July 11, 2003, the concurrent seven-year term subject to the 85% parole disqualifier on Indictment No. 2160-06-02 was imposed.
On March 25, 2004, defendant filed his petition for PCR. A supplemental letter brief was filed on August 8, 2004, by counsel designated by the Office of the Public Defender to represent defendant on the PCR application. After oral argument on December 16, 2005, the PCR judge issued a written opinion dated January 4, 2006, in which he denied the requested relief.
In his appeal brief, defendant raises the following points:
POINT ONE THE COURT COMMITTED PLAIN ERROR CAPABLE OF PRODUCING AN UNJUST RESULT IN FAILING TO CONSIDER DEFENDANT'S AFFIDAVIT IN SUPPORT OF HIS PETITION FOR POST CONVICTION RELIEF (NOT RAISED BELOW).
POINT TWO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF BASED UPON THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
POINT THREE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST. AMENDS. ...