On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-06-0606.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2009
Before Judges Winkelstein and Gilroy.
Defendant James Blue appeals from the April 13, 2007 order denying his petition for post-conviction relief (PCR). We affirm without prejudice to defendant filing a motion in the Law Division to withdraw his plea.
On June 1, 2004, defendant was charged by a Burlington County Grand Jury with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Five). On January 12, 2005, defendant entered into a negotiated plea agreement, pleading guilty to Count Two in exchange for the State dismissing the remaining counts of the indictment and recommending an eight-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Because the negotiated sentence was above the then-presumptive term of seven years, defendant executed a supplemental plea waiver form acknowledging that the trial judge would determine all aggravating and mitigating sentencing factors.
On May 26, 2005, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(1), (3), and (9), and no mitigating factors, the trial judge sentenced defendant in accordance with the plea agreement to a term of eight years of imprisonment with an 85% period of parole ineligibility. The judge also ordered that defendant serve a three-year term of parole supervision on release from prison and dismissed the remaining counts of the indictment.
Defendant did not appeal from the judgment of conviction. However, on March 31, 2006, defendant filed a pro se petition for PCR, arguing that his sentence was illegal because it exceeded the then-existing seven-year presumptive terms for a crime of the second degree, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000).
In December 2006, counsel filed an amended petition, arguing that defendant was denied effective assistance of trial counsel because his attorney failed to: 1) "follow [d]efendant's request to pursue a trial and to present the defense of self[-]defense to a jury"; 2) "call witnesses who would have supported the defense theory of the case had the matter proceeded to trial"; 3) "withdraw the plea of guilty that was entered by the [d]efendant prior to [his] sentencing hearing"; and 4) "present and effectively argue mitigating factors during [his] sentencing hearing." In addition, defendant contended that his sentence was unconstitutional because it was based on facts, not decided by a jury, citing State v. Natale, 184 N.J. 458, 466 (2005).
On March 30, 2007, having determined that an evidentiary hearing was not warranted, the trial court denied defendant's petition. The court entered a confirming order on April 13, 2007.
On appeal, defendant argues:
[DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ...