On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-01-00038.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and J. N. Harris.
This is an appeal from the denial of defendant's application for post-conviction relief (PCR). We affirm.
On December 28, 2002, while defendant supposedly was intoxicated, he shoplifted a karaoke machine from a Toys-R-Us store in Watchung, blatantly ignored an employee's request to stop, and hurried past the exit into the parking lot fleeing towards his motor vehicle. An off-duty Union County Sheriff's Officer, who happened to be present, was alerted as to defendant's conduct. The officer promptly followed defendant to his vehicle, and asked defendant to return to the store to await police. Although defendant initially complied with the officer's request, defendant instead turned and fled with the officer in hot pursuit. In an ensuing confrontation, defendant picked up a wooden board and threatened to use it against the officer in an attempt to escape. Thereupon, defendant entered his vehicle and retrieved a metal tire tool, which he also used to threaten the officer. Ultimately, defendant was apprehended, indicted, and entered a plea of guilty to first-robbery, N.J.S.A. 2C:15-1(a)(2).
In exchange for his guilty plea, the State promised defendant that it would recommend a sentence of "[twelve years] incarceration with 85% to be served without parole." At the time of defendant's guilty plea, on March 31, 2003, he had been already been convicted of five indictable offenses beginning in 1970, with the last such conviction occurring in 1984. At the plea allocution hearing, the prosecutor believed that defendant was "extended term eligible," but she admitted that she "[hadn't] done the math on that." Nevertheless, the court indicated, "he's eligible for life in prison, [twenty-five] without parole would be his potential sentence;" later on, the court said to defendant, who claimed he was presently unaware of the magnitude of his potential sentencing exposure, "[s]o as far as you're concerned, twelve years and 85% without parole is better than [twenty] years and 85% without parole, is that the equation for you?" Defendant responded, "[y]es, your honor." The court repeated to defendant, "[a]nd you understand that given the nature of the charges, that you're going to serve 85% of your term without parole before you become eligible?" Again, defendant responded, "[y]es, your honor."
At sentencing, no mention was made about a possible extended term by the State. Indeed, the prosecutor argued to the sentencing court that "[d]efendant has received the benefit of a generous plea offer. He could have been sentenced to [twenty] years with 85% without parole." Nevertheless, the sentencing judge remarked that several factors of mitigation--defendant's age, history of substance abuse, and nature of the crime--were "taken into consideration at the time the plea bargain was reached. Because you're entitled to an extended term of incarceration, yet the State agrees to a plea bargain that is something even less than [the then] presumptive term."
The sentencing court concluded that aggravating factors three, six, and nine were appropriate.*fn1 It found only mitigating factor four was applicable.*fn2 Accordingly, the judge sentenced defendant to the precise terms of the plea arrangement: twelve years of incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant pursued a sentencing appeal pursuant to Rule 2:9-11, which ultimately did not result in a change of the sentence. State v. Tuck, No. A-2676-03 (App. Div. Jan. 12, 2005), certif. den. 183 N.J. 587 (2005).
Defendant commenced the instant PCR application on May 27, 2005. Counsel was assigned to represent defendant at the argument of defendant's motion for PCR and at the evidentiary hearing conducted before the same judge who had initially sentenced defendant.*fn3 Three witnesses testified at the evidentiary hearing: defendant; defendant's former defense attorney when the guilty plea was entered; and defendant's ex-brother-in-law, who happened to be a licensed New Jersey attorney.
Following the hearing, Judge Edward M. Coleman rendered an oral decision denying defendant's PCR application. Judge Coleman found that defendant's claim regarding ineffective assistance of counsel was plainly unfounded. He held that defendant's recollection of discussions with defense counsel was not credible; to the contrary, the court found the testimony of the former defense attorney "to be the credible testimony in the case." The judge rejected defendant's factual claims of (1) being pressured into making the guilty plea, (2) suffering from an inadequate investigation by the defense attorney, (3) not receiving appropriate advice to file a motion to suppress the statement to the police, and (4) defense counsel's failure to address the possible defense of defendant's intoxication on the date of the offense. This appeal followed.
Defendant makes the following points on appeal:
A. MR. TUCK WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES ...