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State v. Price

August 27, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY PRICE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 98-03-1419, 98-03-1027 and 98-01-0166.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 12, 2009

Before Judges Rodríguez and LeWinn.

Defendant Gary Price appeals from the April 23, 2008 order of the trial court denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

In 1998, defendant was charged in three Essex County indictments with nine third-degree drug-related offenses, third-degree unlawful possession of a weapon and fourth-degree resisting arrest. On August 3, 1998, defendant entered into a negotiated plea agreement whereby he pled guilty to three counts of third-degree possession of cocaine with intent to distribute within 1000 feet of school property and to the weapon and resisting arrest charges. The State agreed to recommend a maximum sentence of four concurrent three-year terms with an eighteen-month parole ineligibility period on the third-degree offenses, and a concurrent eighteen-month term on the fourth-degree offense. The remaining counts were dismissed.

At the time of his plea, defendant was on probation for a third-degree eluding conviction. Defendant acknowledged that his convictions resulting from this plea would constitute a violation of his probation.

During his plea hearing, the judge advised defendant:

This is a third[-]degree offense, it carries the maximum penalty of five years, three years without eligibility for parole. And for each successive one, you could be subject to imprisonment for an extended term, mandatory extended term, which could mean ten with five on the later offenses.

On September 10, 1998, defendant appeared before the trial judge on the violation of his probation and was remanded into custody without bail. On the following day, the judge terminated defendant's prior probation and sentenced him in accordance with his plea bargain.

On March 31, 1999, defendant was charged in a federal indictment with possession of a weapon by a previously convicted felon, 18 U.S.C. §922(g)(1), and distribution or possession of cocaine with intent to distribute, 21 U.S.C. §841(a)(1). Tried to a jury, defendant was convicted of both charges on May 21, 1999. The federal judge sentenced defendant as a "career offender," pursuant to 18 U.S.C. app. § 4B1.1 (2007), and imposed an aggregate term of seventeen years and six months in prison; these sentences were made concurrent to defendant's state sentences. Defendant appealed, and on May 3, 2001, the U.S. Court of Appeals for the Third Circuit affirmed defendant's convictions.

Defendant filed a pro se PCR petition on or about April 25, 2007. Counsel was assigned and filed a supplemental certification on April 8, 2008. In his pro se petition, defendant claimed that: (1) his plea was coerced because his attorney did not raise the issue that the police wrongfully harassed and targeted defendant; and (2) his trial attorney was ineffective for failing to advise him that "the fact of accepting the plea of guilty and the subsequent convictions . . . would be used in the future for enhancement factors." Regarding his failure to file a timely PCR petition under Rule 3:22-12, defendant claimed that "years later, [he was] now discovering that [trial counsel]'s misinformation and misrepresentation can only be corrected through [the] remedy of filing a [PCR petition]."

In his supplemental certification, defendant stated that his "state convictions enabled [the federal judge] to find [him] to be a career offender, placing his sentencing range[] between 17 years and 4 months to 21 years and 10 months[,]" and that "[i]f [he] had known that [his] state convictions could be used as an enhancement factor to boost any future sentence, [he] would not have chosen to plead guilty, and would instead have gone to trial."

In his written decision denying relief, the PCR judge first noted that defendant had failed to file his petition within the five-year time limit set in Rule 3:22-12. Notwithstanding that deficiency, the judge proceeded to "address [defendant's] substantive argument[,]" stating: "In State v. Wilkerson*fn1 . . ., the Appellate Division ruled that the failure of defense counsel to advise . . . defendant that his ...


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