On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0385.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
Defendant Darryl Johnson appeals from the November 1, 2007 order that denied his petition for post-conviction relief (PCR).
We reverse and remand for further proceedings consistent with this opinion.
On February 9, 2004, an Essex County Grand Jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count nine). Co-defendants Ahmad Hagler and Michael Lattimore were also charged with various offenses in the same indictment.
On June 28, 2004, a jury found defendant guilty of second-degree burglary and third-degree possession of a controlled dangerous substance, along with other related charges, under Morris County Indictment Nos. 03-02-0188 and 03-09-1055. On September 1, 2004, the trial court sentenced defendant on his convictions under the Morris County indictments to an aggregate term of seven years of imprisonment with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of parole supervision upon release. At time of sentencing, defendant received 632 days of jail credit on Indictment No. 03-02-0188 and three days of jail credit on Indictment No. 03-09-0155.
On February 3, 2005, defendant entered into a negotiated plea agreement to the lesser-included offense of first-degree aggravated manslaughter on count one, N.J.S.A. 2C:11-4a, and on counts four and nine, in exchange for the State recommending an aggregate term not to exceed fifteen years of imprisonment with an 85% period of parole ineligibility pursuant to NERA. The State also agreed to recommend that the sentences run concurrent with the sentences defendant was then serving on the Morris County convictions.
On April 1, 2005, the trial court sentenced defendant in accordance with the plea agreement. On count one, the court sentenced defendant to a fifteen-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to NERA, and to a five-year term of parole supervision upon release; on count four, to a five-year term of imprisonment; and on count nine, to a ten-year term of imprisonment, subject to an 85% period of parole ineligibility pursuant to NERA, and to a three-year term of parole supervision upon release. Defendant also received 341 days of jail credit and 212 days of gap-time credit. The court ran the sentences concurrent with each other and with the sentences defendant was then serving on the Morris County convictions.
Defendant appealed his sentences as excessive. We affirmed in an appeal heard on the excessive-sentence calendar. State v. Johnson, No. A-6226-05 (February 6, 2007).
On February 2, 2007, defendant filed a pro se petition for PCR, contending that he was denied effective assistance of trial counsel because his attorney incorrectly advised him at the plea proceeding that the jail and gap-time credits would reduce his period of parole ineligibility on count one: "[C]counsel misrepresented to defendant the actual jail credits he would receive by pleading guilty, and those misrepresentations are causing defendant to serve three more years than he expected to serve." In support of his petition, defendant submitted his certification stating that his trial attorney had assured him that he was going to receive 975 days of jail credit, and that the 975 days "would come off the 85% of 15 years."
On November 1, 2007, the trial court entered an order supported by an oral decision denying the petition without an evidentiary hearing, determining that the issue whether defendant should have additional jail or gap-time credits applied against the NERA portion of ...