On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 06-02-0164 and 06-02-3426.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Messano and LeWinn.
Defendant Daniel Scott appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points for our consideration:
THE TRIAL COURT ERRED IN BARRING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO REQUEST THAT THE COURT SENTENCE DEFENDANT TO A TERM OF STATE PRISON LESS THAN THE MAXIMUM ALLOWED UNDER THE PLEA AGREEMENT AND FAILED TO RAISE APPROPRIATE MITIGATING FACTORS.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant pled guilty to second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2). Pursuant to the plea bargain, the remaining six counts of the indictment were to be dismissed, and the State agreed to recommend a maximum sentence of eleven years in prison with a four-year period of parole ineligibility. Defendant agreed to waive the filing of a motion by the State to permit the imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f). Defendant provided a full factual basis for his guilty plea; indicated that he understood all the rights he waived by pleading guilty; acknowledged truthfully completing the plea form with the assistance of counsel; understood he could be sentenced to an extended term of imprisonment; waived the filing of a formal motion by the State in that regard; and understood the sentence recommendation.
On the day of sentencing, defendant sought an adjournment to allow him to undergo an arthroscopic procedure on his knee. Defendant supplied the judge with minimal information regarding the extent of the surgery and whether it was immediately necessary, or simply diagnostic in nature. The judge denied the request.
Defense counsel asked the judge to impose the sentence contemplated by the plea bargain. Defendant himself asked the court to impose a lesser maximum term of "nine with a four." The judge responded by noting an extended term was mandatory, and the "minimum would be ten... if [she] w[as] so inclined." She then reviewed defendant's background, noting that he was fifty years old and had some "health issues," that the amount of cocaine involved was "18 grams," and that he had previously completed an in-patient drug treatment program, "but relapsed shortly afterward." She reviewed defendant's prior criminal history that included a robbery conviction in 1974, and four prior drug convictions. The judge observed that the last drug conviction, in 1999, resulted in a probationary sentence that defendant had not "taken advantage of," as reflected by his re-involvement leading to the current offense. The judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), and "[o]n the mitigating side," defendant's "employment history." Concluding that the "aggravating factors substantially outweigh[ed] the mitigating" factors, the judge sentenced defendant in accordance with the plea agreement. The record does not reveal that any direct appeal was filed by defendant.
On December 17, 2007, eight months after sentencing, defendant filed a pro se PCR petition. The sole issue defendant raised was that his sentence was excessive. Appointed PCR counsel filed a supplemental brief alleging that trial counsel was ineffective because he failed to request ...