On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-334-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Wefing and LeWinn.
Defendant appeals from the June 4, 2008 order of the trial court denying his motion for reconsideration of the April 25, 2008 order which denied his third petition for post-conviction relief (PCR). We affirm.
In 1996, defendant was indicted for knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree armed robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); third-degree possession of a weapon, a knife, with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); and third-degree theft by failure to make required disposition of property, N.J.S.A. 2C:20-9. On April 30, 1997, defendant entered into a negotiated plea agreement whereby he pled guilty to knowing or purposeful murder and armed robbery, and the State agreed to dismiss the remaining charges and to recommend an aggregate sentence of thirty years' incarceration without parole.
On July 1, 1997, defendant filed a pro se motion to withdraw his guilty plea. At sentencing on July 25, 1997, the trial judge denied defendant's motion and proceeded to sentence him to thirty years in prison with a thirty-year parole ineligibility period and a concurrent fifteen-year term on the armed robbery count.
Defendant appealed his sentence pursuant to Rule 2:9-11. At oral argument, he raised a claim that he should have been permitted to withdraw his plea. He argued that since he filed his withdrawal motion pro se, the trial judge should have appointed counsel to argue the motion on his behalf. On February 17, 1998, we issued an order affirming defendant's sentence "without prejudice to defendant's filing a petition for post-conviction relief." State v. DiBenedetti, No. A-1023-97 (App. Div. February 17, 1998). The Supreme Court denied defendant's petition for certification. State v. DiBenedetti, 156 N.J. 380 (1998).
On August 30, 2000, defendant filed a PCR petition seeking to withdraw his guilty plea and claiming ineffective assistance of trial and appellate counsel. He was represented by counsel who filed a supporting brief and presented oral argument on his behalf at a hearing on December 8, 2000. After hearing argument, the PCR judge, who had also presided over defendant's plea and sentence, issued a written opinion denying his PCR petition.
The judge denied defendant's request to withdraw his guilty plea, finding that "at the plea hearing . . . defendant understood his rights[,] . . . stated that no one had coerced him to plea[d] guilty and he was doing so of his own free will." The judge noted further that he had the opportunity to observe defendant's demeanor and listen to his remarks during the plea hearing. . . .
[I]t is clear that the defendant knowingly and voluntarily entered into the subject plea agreement. . . . The factual basis was sufficient to satisfy the elements of purposeful or knowing murder and robbery.
The defendant-petitioner has not been prejudiced to the extent that a manifest injustice has resulted.
Defendant appealed and on January 2, 2003, we affirmed. State v. DiBenedetti, No. A-4571-00 (App. Div. January 2, 2003). We held that the "motion to withdraw defendant's guilty plea was properly rejected before sentencing and following the post-conviction relief hearing." We affirmed on this issue for the reasons stated by the PCR judge. The Supreme Court denied certification. State v. DiBenedetti, 177 N.J. 224 (2003).
On March 1, 2004, defendant filed his second PCR petition. He once again argued that he had received ineffective assistance of trial counsel and sought a plenary hearing. On March 3, 2004, the trial judge summarily denied defendant's petition pursuant to Rules 3:22-5 and -12. The judge found that defendant had raised the identical issues both in his prior appeal and in his first PCR petition; the judge further found that defendant's ...