On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-01-0064.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2009
Before Judges Rodríguez and Reisner.
Defendant Eric Javier Rodriguez appeals from an October 12, 2007 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); first-degree CDS possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1); second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1. Facing a potential fifty-year aggregate sentence if convicted on all counts, defendant accepted a plea bargain under which he pled guilty to the charges of first-degree CDS possession with intent and second-degree weapons possession while committing a CDS offense. In the written plea agreement, the State agreed to drop the remaining charges, and consented to the first-degree CDS offense being treated as a second-degree offense, with a recommended sentence of eight years with a thirty-six month period of parole ineligibility. The plea agreement, which defendant signed, further specified that defendant would receive a consecutive five-year sentence on the weapons offense. The agreement also explicitly stated "Total agg sent = 13 years w/36m NJSP, to run c/c w/ Middlesex County."
At the plea hearing on October 18, 2005, Judge Wertheimer reviewed the plea agreement with the defendant in detail. Specifically, he explained to defendant:
The deal between you and the State is they're going to dismiss counts 1, 3, and 4.
They're [going to] treat this as a second degree for sentencing purposes, and on Count 2 you had an 8 year sentence 36 months without being eligible for parole consecutive to a 5 year sentence on Count 5 for a total aggregate sentence of 13 years with 36 months in New Jersey State Prison to run concurrent with your Middlesex County sentence.
Defendant stated "Yes, sir" when asked if he understood the agreement. He also indicated that no threats or inducements had been made to influence him to plead guilty, and that he understood that if he were convicted on all counts he was facing a possible sentence of fifty years with a twenty-five year parole bar. Defendant then admitted under oath that on November 7, 2000, he possessed five ounces or more of cocaine with intent to sell it, while in possession of an unlicensed firearm.
When defendant appeared for sentencing on January 20, 2006, his attorney indicated to the judge that his client "voiced to me [that] he is very displeased with the plea. He feels it is too hard." Counsel stated that his client planned to file a motion to retract the plea. Addressing the court, defendant stated that, prior to the plea hearing, the State had first offered him nine years, with a three-year parole bar, with "everything running concurrent" and then withdrew that offer. Defendant indicated that he accepted the revised plea offer under "pressure" because the prosecutor had indicated that if he did not accept the offer "she could give me more time or we file the papers for trial." Significantly, defendant did not indicate any dissatisfaction with his attorney. After declining to adjourn the sentencing but advising defendant that he would consider a motion to withdraw the plea if one were ever filed, Judge Wertheimer imposed sentence in accordance with the exact terms of the plea agreement. Defendant did not appeal.
Thereafter, on February 23, 2007, defendant filed this PCR petition contending that the plea offer "was not properly explained to him," and that his attorney "did absolutely no work on [the] case" and threatened to "walk off" if he did not accept the plea agreement. At oral argument on the PCR petition, defendant's PCR attorney emphasized her client's contention that "when he took the plea he didn't understand the words concurrent versus consecutive." Asked by the judge if he wished to say anything, defendant confirmed that this was his primary contention.
On October 12, 2007, Judge Wertheimer concluded that "defendant has failed to demonstrate that he was misinformed" about the plea agreement. Based on the colloquy at the plea hearing, the judge found that he had explicitly explained the agreement and defendant had indicated that he understood it and accepted it. Further, "the transcript lacks any indication that the defendant was upset with counsel's representation." Moreover, the judge concluded that "the prosecutor's threat of more jail time is hardly coercive. . . . [S]uch tactics are part of the give and take of plea bargaining." He also concluded: "The defendant was apprised of the terms of the agreement, and he understood those terms . . . . [T]he defendant was never misled by the court, the prosecution, or defense counsel." Consequently, the judge concluded that defendant had not demonstrated that his trial counsel rendered ineffective assistance.
On this appeal, defendant contends that he "established at least a prima facie case of ineffective assistance of plea counsel" and that his "guilty plea was not knowing, voluntary and intelligent, entitling him to withdraw from it." Having thoroughly reviewed the record, we conclude these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we ...