On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 00-03-0203.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 4, 2010
Before Judges Axelrad and Espinosa.
Defendant Marie Hess appeals from the Law Division's August 28, 2008 order denying her motion for post-conviction relief (PCR) without an evidentiary hearing, primarily alleging ineffective assistance of counsel at sentencing. We affirm.
On March 23, 2000, defendant was charged with first-degree murder, N.J.S.A. 2C:ll-3a(l) and (2), of her husband, a Burlington Township police officer, under Indictment Number 00-03-0203. The State negotiated a plea agreement with defendant whereby it agreed to reduce the charge against her to aggravated manslaughter, N.J.S.A. 2C:11-4a, and recommend a thirty-year custodial term subject to an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, in exchange for her guilty plea, acknowledgement of the applicability of NERA to the crime*fn1 , and agreement not to affirmatively seek a lesser term of imprisonment from the court or appeal her judgment of conviction, and to cooperate with the victim's family in providing a truthful recitation of the manner in which she carried out the homicide.
All of these aspects of the agreement were memorialized in writing, attached to the plea form and placed on the record by the prosecutor and acknowledged by defense counsel at the plea hearing on April l6, 200l. The Prosecutor's April 5, 200l letter stated, in part:
It is our intention, through this plea agreement, to provide a benefit to your client for her cooperation in allowing a plea to Aggravated Manslaughter for a crime which she has clearly indicated, was a purposeful murder. This Office is reducing by 4 1/2 years the mandatory minimum for murder, i.e. thirty years without parole, as the benefit she derives for her cooperation.
Your client is, in turn, conceding the applicability of NERA to the maximum term of imprisonment for the crime of Aggravated Manslaughter. Further, she is conceding that the aggravating factors under N.J.S.A. 2C:44-la so preponderate over the mitigating factors set forth in N.J.S.A. 2C:44-lb as to make the maximum term of 30 years appropriate. I would also indicate that this Office is aware that we cannot bind the Court to sentence in this fashion pursuant to the principles enunciated in State v.
Warren, 115 N.J. 433 (l989), and it is not our intention to do so. However, we believe it permissible to bind your client to this agreement.
Defendant was explicitly questioned as to her agreement to the sentence and the applicability of NERA and that it was exclusively within the province of the court to decide if a lower sentence would be imposed. Specifically, the judge told defendant it was within his "judicial discretion" to sentence her to less than "30 years at 85 percent" but he did not want to give her "any false hopes" or "any hopes at all," or for her to "have an expectation" that he would do that, which defendant expressly acknowledged she understood. She further acknowledged her knowing, voluntary entry of the plea and waiver of rights. Defendant then provided the following factual basis for her plea, which Judge Schlosser accepted as sufficient for aggravated manslaughter:
Q: [Marc Neff, defense counsel]: . . . Do you remember where you were when this event took place?
Q: Okay. And whose bedroom was it?
A: Jimmy's and mine. . . . .
Q: And you had been married for how long?
Q: And during the time immediately preceding this incident, the months that preceded it, were there some financial difficulties in your household?
Q: Was Jimmy aware of the extent of those financial difficulties?
Q: Okay. Did those financial difficulties lead to a great deal of frustration on your part and friction within the marriage from your perspective?
Q: Were you hiding from Jimmy, your husband, the nature and extent of the financial despair that you, as a couple, were in?
Q: At this point in time, you and Jimmy were applying for a mortgage, is that correct?
Q: And it was at this point in time that the tensions between you and Jimmy rose to a heightened level, is that correct?
Q: Okay. And when those tensions rose to that level, it did culminate in your shooting your husband, Jimmy?
Q: Where did you get the gun that you used on that particular day?
A: Out of a box that he stored it in in the house.
Q: Okay. And is there any question in your mind that the shot that you fired on that fateful morning was the ...