On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-1-325.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 27, 2010
Before Judges Axelrad and Espinosa.
Defendant Donnell Lilly appeals from the February l4, 2008 order denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing in which he argues ineffective assistance of trial counsel in failing to inform him, prior to pleading guilty, that he would be subject to the mandatory five-year parole supervision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
Essex County Indictment Number 99-01-00325, filed on January 28, 1999, charged defendant with one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7. On September 9, 1999, Essex County Indictment No. 99-09-02903 charged defendant in five counts: first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); fourth-degree resisting arrest, N.J.S.A. 2C:29-2 (count four); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five).
Defendant was also charged in Accusation Number 99-12-01478 in three counts: third-degree possession of cocaine, N.J.S.A. 2C:35-10 (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5 (count two); and third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three).
On December 8, 1999, defendant pled guilty to count one (first-degree robbery) and count three (second-degree possession of a weapon for an unlawful purpose) of Indictment Number 99-09-02903; count one (third-degree receiving stolen property) of Indictment Number 99-01-00325; and count three (third-degree possession of cocaine with intent to distribute in a school zone) of the Accusation. As part of the plea, the State agreed to dismiss all remaining counts and to recommend an aggregate sentence of fifteen years/eighty-five percent as indicated in the plea form (related to the armed robbery with the other counts merged or concurrent). Judge Michael Casale indicated he would consider sentencing the twenty-two-year-old defendant to a ten year/eighty-five percent custodial term because there were no injuries sustained in the robbery and because of defendant's youth as long as defendant appeared at sentencing and remained arrest-free in the interim. Defendant expressly acknowledged that if he violated those conditions the judge would accept the State's recommendation. In addition to acknowledging that his plea was entered knowingly, voluntarily and intelligently after consulting with counsel, defendant also answered questions establishing a factual basis for his plea to the aforementioned charges.
On February 25, 2000, defendant failed to appear at sentencing and a bench warrant was issued for his arrest. On March 2, defendant was arrested in Maryland and charged with possession and distribution of a controlled dangerous substance and on October l2, he was sentenced to a four-year custodial term. After serving two years in the Maryland state prison, defendant was extradited to New Jersey for sentencing in this case.
On December 3, 2001, defendant was sentenced by Judge Casale to an aggregate term of twelve years/eighty-five percent, subject to NERA as well as the Graves Act, N.J.S.A. 2C:43-6c. All remaining counts were dismissed and defendant's probationary sentence on another charge was terminated without improvement. The court recited as satisfactory the factual basis that defendant had acknowledged at the plea colloquy. The court found aggravating factors three, six and nine and mitigating factors two and thirteen.*fn1 Defendant was expressly informed of the NERA consequences, including the five-year period of parole supervision.
Defendant filed an appeal, which was heard on a May 5, 2003 Excessive Sentence Oral Argument (ESOA) calendar. Defense counsel argued that the court should have sentenced defendant to the ten-year term as it had initially proposed, particularly as he had already served two years in custody in Maryland. We affirmed the judgment of the trial court. State v. Lilly, No. A-5224-01T4 (App. Div. May 5, 2003). The Supreme Court denied defendant's petition for certification on September 8, 2003. State v. Lilly, 117 N.J. 573 (2003).
On May 23 and August l6, 2006, defendant filed motions to correct an illegal sentence, which were denied on June 30 and September 22, 2006, respectively. On November l3, 2006, defendant filed a PCR petition, which was denied by Judge Casale on February l3, 2008, following oral argument but without an evidentiary hearing. The PCR relief sought by defendant, though not articulated expressly, was a request to withdraw his guilty plea and ideally re-negotiate his sentence to ten years/NERA. Defense counsel presented a certification of defendant stating that when he pled guilty he did not understand the consequences, no one ever informed him that he would face an additional five-year prison sentence if he violated his parole, and had he known of these consequences, he would not have pled guilty. At oral argument, defense counsel acknowledged that the court mentioned the parole supervision at sentencing but noted it was not mentioned anywhere in the plea. She contended that defendant did not receive effective assistance of trial counsel and that the outcome would have been different if he had been told about the parole supervision in that he would not have accepted the plea and agreed to the sentence.
Defendant's argument was rejected. Judge Casale first found that defendant's PCR application was procedurally barred because it actually was a motion to vacate the plea and sentence pursuant to Rule 3:21-10, which requires a claim to be raised within seventy-five days of the judgment of conviction (JOC). His application was further procedurally precluded from consideration pursuant to Rule 3:22-3 and Rule 3:22-4, as it should have been raised on direct appeal and was not.
Nevertheless, the judge addressed defendant's requested relief on the merits, finding no need for an evidentiary hearing under the proofs presented, which did not even establish a prima facie case. The judge noted he had specifically mentioned the period of mandatory parole supervision at sentencing and it was explicitly included in the pre-sentence report and JOC. Moreover, "[d]efendant said his plea was fully explained to him by defense attorney during the plea colloquy." The judge found that defendant had "not established that his guilty plea was not voluntary and knowingly made" and "there is no indication [in the record] that [defendant] had a mistaken belief about the ramifications of his plea." See State v. Johnson, 182 N.J. 232, 236 (2005). Judge Casale further found the parole supervision period was not ...