On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-1492.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and King.
Defendant, Christopher M. Chavies, appeals from a July 30, 2007 order that denied his petition for post-conviction relief (PCR). Defendant maintains that the judge erred when she denied his PCR petition without conducting an evidentiary hearing on his claim that trial counsel was ineffective because he failed to advise defendant that he would not be awarded jail credit for the time served from the date of his arrest through the day of sentencing. We conclude that Judge Stolte properly denied defendant's petition without affording him an evidentiary hearing, and affirm.
On August 25, 1998, defendant was arrested and charged with the murder of his girlfriend, Lora M. Freyer. At the time of that arrest, defendant was on parole for an armed robbery. On August 26, 1998, one day after he was arrested for Freyer's murder, defendant was charged with violating parole, based upon his arrest on the murder charge. On September 1, 1998, the Parole Board imposed a parole violation sentence of two years, seven months and six days. Thus, the parole violation sentence would have ended on approximately April 7, 2001.
On February 10, 2000, a jury returned guilty verdicts on the murder charge and on the additional charges of hindering apprehension, credit card theft and unlawful use of a credit card. For a reason that is unclear from the record, at the time of original sentencing on April 10, 2000, the judge awarded jail credit not only for August 25 and 26, 1998, but also for the sixty-one days between February 10, 2000 and the day of sentencing, April 10, 2000. We reversed defendant's conviction on the murder charge, affirmed his conviction on the charges of hindering apprehension, credit card theft and unlawful use of a credit card, and remanded for a new trial on the murder charge. State v. Chavies, 345 N.J. Super. 254, 260 (App. Div. 2001).
On April 15, 2002, before the retrial could take place, defendant entered a negotiated plea of guilty, in which he agreed to plead guilty to an amended charge of aggravated manslaughter in return for a recommended sentence of twenty-two years imprisonment, subject to an 85% parole disqualifier. The plea agreement specifically provided that defendant's sentence on aggravated manslaughter and the related charges would be concurrent to the parole violation sentence defendant was then serving. During the plea colloquy on April 15, 2002, defense counsel questioned defendant about his understanding of the interplay between the parole violation sentence and the sentence on the aggravated manslaughter charge. The following discussion occurred:
Q: Now, you're presently serving a parole violation sentence, correct? . . . You understand that your parole eligibility on that sentence could be affected by the fact that you're pleading guilty to this one?
Q: Now, the prosecutor has made you a plea offer. And the plea offer is twenty-two years in the State Prison with an eighty-five percent period of parole ineligibility . . . . And that it's all going to be made concurrent to your parole violation. . . . Do you understand that?
Q: Other than what I just went through, has anybody promised you anything else? Anything else ...