On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 03-07-2648; 03-03-1042; 03-05-0748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Graves and J. N. Harris.
This is defendant's first application for post-conviction relief (PCR). He claims that he was the victim of ineffective assistance of counsel and suffered an illegal sentence. We have reviewed his multiple claims of error and find none of them constitute sufficient grounds to compromise the proceedings below, which yielded an aggregate sentence of five years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Accordingly, we affirm.
In April 2004, after consulting with his attorney and engaging in an extended discussion with the court concerning his plea bargain, defendant entered knowing, voluntary, and intelligent guilty pleas to the following crimes: second degree armed burglary (N.J.S.A. 2C:18-2(a)(1) and (b)(2)) in Burlington County, third degree theft (N.J.S.A. 2C:20-3(a)) in Burlington County, third degree burglary (N.J.S.A. 2C:18-2(a)(1)) in Camden County, and third degree theft (N.J.S.A. 2C:20-3(a)) in Camden County. By agreeing to plead guilty to these crimes, defendant was promised that the Burlington County Prosecutor*fn1 would recommend a sentence of no more than five years - subject to the NERA - in the aggregate. At sentencing on August 27, 2004, Judge John A. Almeida exercised his discretion consistent with the terms of the plea agreement, thereby imposing upon defendant an aggregate term of imprisonment of five years, subject to the NERA.
Defendant did not seek direct review of his judgments of conviction. Instead, defendant filed a motion to correct an illegal sentence, which was denied by Judge Almeida on November 14, 2005. Defendant did not appeal the outcome of that motion. The instant application for post-conviction relief was filed in February 2006. A hearing was conducted on the PCR on June 11, 2007, after which Judge Almeida entered an order on June 21, 2007, which granted relief to "correct the statutory citation noted on the judgment of conviction." All other aspects of defendant's PCR were denied, including defendant's request for an evidentiary hearing. This appeal followed.
Defendant was accused of participating in three criminal events, two in Camden County and one in Burlington County. He was indicted by three grand juries and charged with a multitude of crimes. Ultimately, he decided to plead guilty to some, but not all, of them. The plea bargain negotiated by defendant's attorney provided for a sentence five times shorter than the maximum twenty-five years permitted by the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et. seq., for the crimes charged. After consulting with defense counsel, defendant offered a factual basis to support his pleas. One of the components of the plea bargain recognized the strict effect of the NERA due to defendant's plea to second degree armed burglary. N.J.S.A. 2C:43-7.2(a):
A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole. [N.J.S.A. 2C:43-7.2(a).]
The court shall impose sentence pursuant to subsection a. of this section upon conviction of the following crimes or an attempt or ...