On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-07-2529.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2010
Before Judges Sabatino and Ashrafi.
Defendant Dennis Silva appeals from denial of his petition for post-conviction relief (PCR) under Rule 3:22. We affirm.
Following indictment in 2002 on six counts of first-degree armed robbery, N.J.S.A. 2C:15-1, defendant entered into a plea agreement and pleaded guilty to all six counts in exchange for a sentence of eleven years' imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the State agreed that any sentence for defendant's violation of probation on sentences that he was serving at that time would run concurrently with the prison term for the robberies.
At the plea hearing, the court addressed defendant and counsel and covered in detail defendant's due process rights, the terms of the plea agreement, defendant's knowing and voluntary decision to enter into the plea agreement, and a factual basis for each charge of armed robbery and violation of probation. Defendant had also completed a plea form with the assistance of his attorney, in which the same subjects were addressed in detail.
The relevant facts of the underlying offenses are that from May 7 to May 18, 2002, defendant approached six separate victims and threatened to harm them if they did not give him money. Defendant would indicate that he had a weapon - a gun, knife, or screwdriver according to different victims - sometimes by pointing to a bulge in his pocket. The victims were two gas station attendants, two store clerks, and two other persons in the street. Defendant obtained cash from some of the victims. At the time of these robberies, defendant was on probation for prior convictions for possession of a controlled dangerous substance and for aggravated assault upon a police officer. He had failed to comply with the conditions of his probation.
On May 30, 2002, defendant was sentenced in accordance with the plea agreement to concurrent terms of eleven years' imprisonment on each of the six first-degree robbery charges, with eighty-five percent of the term to be served before parole under NERA and five years of parole supervision after his release from prison. Defendant was also sentenced to concurrent four-year terms of imprisonment on the violation of probation charges. Defendant was ordered to pay restitution of $382 and appropriate statutory money penalties. According to defense counsel, defendant is not scheduled to be released from prison until September 2011.
Defendant filed a notice of appeal of his sentence, which we heard on October 18, 2004, in an Excessive Sentence Oral Argument Calendar pursuant to Rule 2:9-11. We denied the direct appeal of his sentence by order of the same date. State v. Silva, No. A-1706-03T4 (App. Div. Oct. 18, 2004). The Supreme Court denied defendant's petition for certification. 182 N.J. 430 (2005).
Defendant filed a pro se petition for PCR on January 18, 2008, within five years of his conviction. See R. 3:22-12(a). Counsel was assigned, and an amended PCR petition was filed on behalf of defendant in July 2008. Through both his pro se and his counsel's petitions, defendant alleged he had been denied effective assistance of counsel at his plea and sentencing in 2002 because his attorney had failed to have defendant evaluated psychiatrically for the purpose of developing a defense of insanity or diminished capacity. Defendant alleged that he had a history of mental illness and he was a drug addict at the time he committed the robberies, and those factors should have been considered by the court. He also alleged that the same factors were not adequately addressed at his sentencing to mitigate the severity of his sentence.
Defendant was present with counsel at the hearing on his PCR petition held on October 3, 2008, before the trial judge who had taken defendant's plea and sentenced him six and a half years earlier. At the beginning of the hearing, defense counsel stated that the PCR petition would be submitted for the court's determination on the briefs and other papers filed. The court then addressed defendant personally and asked:
THE COURT: Mr. Silva, you do not wish to present anything, Sir, other than ...