On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-10-1273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2010
Before Judges Payne and Waugh.
Defendant Anthony Alves appeals from an order denying his petition for post-conviction relief (PCR). We affirm.
The underlying facts are briefly stated. In April 2003, the Department of Corrections transferred Alves to Kentock House, a residential halfway house in Newark, to complete his sentence from a prior conviction. On July 26, 2003, Alves left Kentock House without permission. On July 28, 2003, he stole a motor vehicle. The owner reported the theft to the police, who broadcast a description of the vehicle. The police spotted the vehicle but Alves refused to stop when signaled to do so. Instead, he drove over the curb and through a bushy area onto Route 1. He was pursued by the police until he exited Route 1 at Hazelwood Avenue in Rahway, where he crashed into a tree. He was arrested and eventually indicted for third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3 (count one); third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count two); and second-degree eluding, contrary to N.J.S.A. 2C:29-2(b) (count three).
On December 22, 2003, Alves accepted a plea offer under which he pled guilty to the second-degree eluding charge. In return, the State agreed to recommend a sentence of twelve years imprisonment, with a five-year period of parole ineligibility. The sentence was premised on an extended term pursuant to N.J.S.A. 2C:44-3(f). The State also agreed to dismiss the remaining charges. At the time of the plea, Alves agreed that he was driving a stolen vehicle and that "[d]ue to the rate of speed and the weaving and the chasing that [he] knew [he was] putting people at risk because [he] was taking some chances with the chase."
Alves was sentenced in accordance with the plea offer on April 12, 2004, with the sentence to be concurrent with the sentence he was serving at the time. He appealed the sentence as excessive and argued that the sentencing judge erred by failing to hold a hearing on the appropriateness of an extended term. The appeal was considered during a sentencing calendar on May 4, 2005. We affirmed in an order entered on May 5, 2005. Alves did not seek certification of our opinion by the Supreme Court.
Alves filed his PCR petition on March 19, 2007. The petition was amended on December 14, 2007. In his amended petition, he raised the following points:
COUNSEL'S FAILURE TO ADEQUATELY CONSULT WITH PETITIONER IN PREPARATION FOR HIS CASE AND FAILURE TO PROPERLY INVESTIGATE WITNESSES SO AS TO ENABLE PETITIONER TO SET FORTH A MEANINGFUL DEFENSE, DEPRIVED PETITIONER OF EFFECTIVE ASSISTANCE OF COUNSEL.
COUNSEL'S NEGOTIATION OF AN EXTENDED TERM PLEA AND FAILURE TO ARGUE THAT AN EXTENDED SENTENCE WOULD VIOLATE THE DICTATES OF STATE V. NATALE AND BLAKELY V. WASHINGTON. U.S. Const. amend. VI, XIV; N.J. Const. art. I, ¶¶ 8, 9, 10, 11 DEPRIVED THE PETITIONER OF EFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL ATTORNEY FAILED TO PRESENT APPLICABLE MITIGATING FACTORS SUPPORTING SENTENCES LOWER THAN THE EXTENDED TERM RECOMMENDED IN THE PLEA AGREEMENT. U.S. Const. amend. VI, XIV; N.J. Const. art. I, ¶ 10.
Judge James F. Mulvihill heard the PCR application on February 8, 2008. Without holding an evidentiary hearing, he denied the petition. Judge Mulvihill stated his reasons as follows:
To establish ineffective assistance of counsel, defense must demonstrate under the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984),] test that (1), "counsel's representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." And it's best to examine each of the defendant's arguments to determine if he established ineffective assistance of counsel.
As to the failure to adequately consult during the plea proceedings, defendant was asked a series of questions by the Court to ensure that he had received satisfactory representation through his attorney, Robert White, who was then an assistant deputy public defender. Defendant answered in the affirmative when asked if Mr. White went over the plea form with him in detail, if he answered all of his questions, and was he satisfied with his services, and he did that under oath.
Two, counsel's negotiation of an extended term. Defendant has thirteen adult arrests, resulting in ten convictions. Due to the extensive record of defendant, it is completely reasonable to assume that the Court based its sentencing of the defendant on his prior record. There was no [State v. Natale, 184 N.J. 458 (2005),] violation. No other aggravating factors were found except risk and need to deter. And trial counsel managed to negotiate a lower sentence than ...