On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-05-1854.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges Lisa and Alvarez.
Defendant Michael Hutchins appeals from the denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
On March 17, 2004, at approximately 10:45 p.m., defendant entered a 7-Eleven store, approached the counter, and put his hand in his pants pocket, as if to suggest he had a weapon. He threatened the cashier, who handed him approximately $375 from the register. Defendant was apprehended shortly thereafter and was identified by the cashier in a show-up. Police seized the clothing he wore during the robbery from the one-bedroom apartment he shared with another person, who consented to the search. The robbery was captured on video at the store, and defendant confessed twice - once when interviewed by the Oaklyn police and once when interviewed by the Camden County Prosecutor's Office.
Despite having a significant record at age thirty-five, including four indictable crimes and two disorderly persons offenses, defendant was able to negotiate a sentence of twelve years imprisonment to an amended charge of second-degree robbery subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a, to be served concurrent to a parole violation. During his plea colloquy, defendant established the factual basis for the entry of his guilty plea and his clear understanding of the sentence term. Additionally, the length of the term was discussed on the record by counsel and the court in defendant's presence. The court specifically reviewed the parole ineligibility aspect of the sentence with defendant - that he would serve ten years, two months, and thirteen days before being eligible for parole. Defendant was sentenced on September 10, 2004. His PCR application was filed on June 2, 2006.
On appeal, he raises the following points:
POINT ONE: TRIAL COUNSEL SHOULD HAVE FILED A MOTION TO SUPPRESS EVIDENCE.
POINT TWO: TRIAL COUNSEL SHOULD HAVE PROPERLY ADVISED HUTCHINS OF HIS SENTENCE.
We affirm the denial of PCR essentially for the reasons expressed by Judge McNeill in his oral decision. We add the following brief comments.
Defendant's first claim is that his trial attorney should have filed a motion to suppress evidence seized during the search of his apartment. The only person in the apartment when police arrived was defendant's roommate, who gave verbal consent to the search. In support of his PCR application, defendant does not offer an affidavit or certification from that individual substantiating his factual assertions regarding the allegedly unlawful manner in which the consent was obtained. Bare allegations are an insufficient basis for relief by way of PCR. State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999). Absent some proof that the consent was unlawfully given, the claim is based on nothing more than bare allegations. The claim is therefore untenable.
Defendant's second contention is that his plea attorney misrepresented the length of his sentence. This bare assertion is actually contradicted by the record, as the plea form defendant signed clearly states that he would be sentenced to twelve years imprisonment. That figure was explicitly discussed on the record during the plea colloquy in defendant's presence by the prosecutor, defendant's attorney, and the court. Defendant assented when asked if he understood the NERA implications of his sentence. In the absence of any record support, ...