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State v. Sapp

March 12, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERRY SAPP, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-08-1501.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 25, 2009

Before Judges Fisher and Baxter.

Defendant, Jerry Sapp, appeals from a September 14, 2006 order that denied his petition for post-conviction relief (PCR). Before the Law Division, defendant claimed that trial counsel was ineffective because he misinformed defendant concerning the maximum sentencing exposure defendant faced if convicted at trial. The PCR judge rejected that claim without conducting an evidentiary hearing. We affirm.

I.

The State's proofs elicited at trial established that on April 14, 2001, defendant accosted Paul and Marlene Marcinkowsky, and Loretta Madrigale, Marlene's mother, as the three were entering their automobile in the garage of an Atlantic City casino. After grabbing Marlene, defendant pushed her into the vehicle that her husband and mother had already entered, and held a knife to her throat while demanding money. As Marlene struggled to push the knife away, defendant announced that he had a gun in his pocket and would "blow [her] f---ing head off."

The jury returned a guilty verdict on three counts of first-degree robbery. After granting the State's motion to sentence defendant to an extended term of imprisonment,*fn1 Judge Donio sentenced defendant for the robbery committed against Paul to a fifty-year term of imprisonment, with a twenty-five year period of parole ineligibility. That sentence was concurrent to a fifteen-year sentence, with a twelve-year, nine-month period of parole ineligibility, for the robbery committed against Loretta. The judge imposed a consecutive twenty-year term of imprisonment, subject to a seventeen-year period of parole ineligibility, for the robbery committed against Marlene. The aggregate sentence was thus seventy years imprisonment, of which forty-two years was required to be served without parole.

We affirmed defendant's conviction on direct appeal. State v. Sapp, No. A-3230-02 (App. Div.) (slip op. at 6), certif. denied, 183 N.J. 214 (2005). We remanded the sentence for an explanation of why the judge ordered the shorter sentence--for the robbery committed against Marlene--to be served before the longer sentence imposed for the other two robberies. Id. at 15-16. We rejected defendant's remaining sentencing arguments. Id. at 9-10.

Defendant filed a timely PCR petition in which he asserted that trial counsel was ineffective because counsel "advised [defendant] that he did not think [defendant] would receive the maximum sentence of seventy years." Defendant further maintained that he "was never afforded the opportunity to plead out" and thereby avoid exposure to the maximum penalty of seventy years imprisonment.

Judge Donio, who was also the trial judge, rejected that claim without affording defendant an evidentiary hearing. The judge reasoned:

[Defendant] absolutely positively was offered a plea agreement. My best memory is that it was 10 or 15 years NERA. I know that the record will show that I had those discussions with him on the record and he intelligently and knowingly and voluntarily indicated he wanted to go to trial. [It]

[s]hould be noted at the outset that [defendant] went to trial with competent and experienced trial counsel, [who] tried as good a case as could be tried under the facts of the case where the proofs were extremely, extremely strong.

Furthermore, defendant was well aware of the maximum type of sentence that he could receive if convicted. I remember before you went to trial it was brought out and he was adamant that he wanted a trial. So he got his trial, and the ...


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