On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 22, 2009
Before Judges Fisher and C.L. Miniman.
Defendant Akeem Wilder appeals from the August 3, 2007, denial of his petition for post-conviction relief (PCR) based on ineffective assistance of counsel. Judge Marilyn C. Clark concluded that no evidentiary hearing was required. We affirm.
Defendant was charged in a seven-count indictment with various third-degree drug offenses allegedly committed on October 11, 2003. On April 28, 2004, defendant pled guilty to distribution of cocaine within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7, 2C:35-5(a), and 2C:2-6. He was sentenced to 364 days in the Passaic County Jail followed by three years of probation with conditions. Various fines and assessments were also imposed. He did not appeal from the resulting Judgment of Conviction and Imposition of Sentence.
Defendant was indicted on May 18, 2006, and charged with resisting arrest, N.J.S.A. 2C:29-2(a)(3), and aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a). It is not clear whether this occurred in the jail or whether defendant had been released on probation. Defendant was again indicted on June 15, 2006, and charged with unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); resisting arrest, N.J.S.A. 2C:29-2(a)(2); and certain persons not to have a weapon, N.J.S.A. 2C:39-7(b). Needless to say, defendant was charged with violating the terms of his probation on November 9, 2006, for being charged with additional crimes and for failing to comply with the terms of probation.
Defendant filed his first PCR petition on February 23, 2007, alleging ineffective assistance of counsel. He asserted that he had been coerced by his counsel into accepting the plea agreement and that he was under the impression that he would not receive a felony record because he was only pleading guilty as an accomplice to possession of cocaine. He claimed that he had had no experience with legal matters and trusted his attorney, who told him he would be convicted if he went to trial and faced a five-year prison term, three years without parole. He stated that his attorney told him that he was only pleading to a "non-felony possession charge" and that the felonies would all be dismissed. As a consequence, he claimed that he understood at the time of the plea that his record would be clean when he completed probation.
He also claimed that his attorney had not provided him with any discovery and did not review the State's discovery with him. Further, he asserted that his attorney failed to investigate Nicole Kelly, who defendant alleged was willing to sign an affidavit averring that defendant was innocent and explaining the basis for her knowledge. Defendant claimed that his attorney stated he "would refuse such an affidavit, and that it would only be admissible at trial, and that a jury would not believe it because [defendant] was black and that I would probably receive additional charges of witness tampering."
Judge Clark heard argument on the PCR application on August 2, 2007, and, in placing her decision on the record, reviewed the LR-27 plea form, supplemental plea form for drug offenses, and relevant portions of the April 28, 2004, plea hearing. The plea form indicated that defendant was pleading guilty to third-degree distribution of cocaine within 1000 feet of a school and he represented that he knew what the charges meant. He represented that no promises had been made to him other than ones reflected in the plea form and that no threats had been made to cause him to plead guilty. He indicated that he was satisfied with the advice he had received from his lawyer. He also indicated that he understood that the crime to which he was pleading guilty carried a presumption of imprisonment. Finally, he indicated he understood that he would be required to pay a $1000 Drug Enforcement and Demand Reduction penalty.
The judge then reviewed the voir dire of the defendant at the plea. Defense counsel reviewed the plea form with defendant, who confirmed that he had answered the questions and initialed the form. Defendant testified that no one forced him to enter the plea and that he did so freely and voluntarily. Counsel then examined defendant with respect to the basis for the plea and he testified that on October 11, 2003, at about 2:00 p.m. he distributed crack cocaine to a Michael Hoffman.
Judge Clark also observed that, at the plea hearing, defendant acknowledged he sold cocaine to an individual who drove up in a car that day and that he was within 1000 feet of Roberto Clemente Elementary School when he did so. He also told the judge that he knew it was illegal to sell cocaine. He testified that he was pleading guilty voluntarily, that he had enough time to go over everything with his attorney and that he was satisfied with his services. The judge explained that defendant would be sentenced to probation for up to five years and if he violated his probation he would be sent to prison for up to five years, which he acknowledged. The judge then asked defense counsel if he was satisfied that defendant was pleading guilty freely and voluntarily and the attorney replied that he was. At sentencing, defendant's counsel represented that this was defendant's first indictable offense and defendant then apologized to the court "for the charge selling drugs."
After this review, Judge Clark placed her decision on the record:
With respect to the defendant's assertion that he had no idea that he would have a criminal record, he put on the plea form, he acknowledge[d] going over the plea form with his attorney. [W]e refer to this as being his ...