On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-04-1122 and 00-10-2923.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges Simonelli and Waugh.
Defendant Dennis Clifford appeals from the denial of his petition for post conviction relief (PCR) grounded on ineffective assistance of PCR counsel. We affirm.
Defendant was charged in two indictments and an accusation with numerous first-, second-, third- and fourth-degree offenses. Defendant pled guilty under Indictment No. 00-04-1122 to first-degree robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4d; two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and second-degree eluding police, N.J.S.A. 2C:29-2b. Defendant pled guilty under Indictment No. 00-10-2923 to first-degree carjacking, N.J.S.A. 2C:15-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. Defendant pled guilty under Accusation No. 01-03-397 to third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.
At the plea hearing, as to Indictment No. 00-04-1122, defendant admitted that he threatened the victim with a knife and dovetail saw in order to rob him; attempted to escape in an automobile as the police pursued him; traveled at a high rate of speed that could have caused bodily injury or a serious accident; and assaulted a police officer during his attempt to avoid apprehension.
Defendant also acknowledged that (1) the plea agreement provided for a sentence of ten years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for Indictment No. 00-04-1122, a consecutive twenty years subject to NERA on Indictment No. 00-10-2923, and a consecutive five years on Accusation No. 01-03-397; (2) a parole disqualifier would apply no matter what sentence the trial judge imposed, and he discussed this with his attorney; (3) he understood and had no questions about the parole disqualifier; (4) his attorney assisted him in answering the plea forms; and (5) he signed the NERA plea form. That form advised defendant that he was subject to a five-year term of parole supervision if convicted of a violent first-degree crime.
At sentencing, defendant again acknowledged that the plea agreement provided for a ten-year sentence subject to NERA on Indictment No. 00-04-1122; however, he challenged the applicability of NERA to Indictment No. 00-10-2923. The trial judge found that NERA inapplicable to Indictment No. 00-10-2923 because the victim did not suffer serious bodily injury. The judge found NERA applicable to Indictment No. 00-04-1122 because defendant used a weapon to threaten the victim and assaulted a police officer. The judge concluded that
The facts of the case certainly in conjunction with the Prosecutor's election to request the application of [NERA] and in conjunction with the defendant's acceptance of that in the plea agreement certainly does constitute and amount to a violent crime.
The judge sentenced defendant to a fifteen-year term of imprisonment on Indictment No. 00-04-1122 subject to NERA; a concurrent fifteen years on Indictment No. 00-10-2923; and a concurrent four years on Accusation No. 01-03-397. The judge entered three judgments of conviction on May 4, 2001. Defendant did not appeal his conviction or sentence.
Defendant claims that on February 9, 2006, he mailed a pro se PCR petition to the Essex County Criminal Division manager for filing. However, although there is an "Inmate Package Outgoing Invoice" evidencing defendant's mailing of the petition to the trial judge, the Office of the Public Defender, and the Office of the Essex County Prosecutor, there is no such document for the Criminal Division Manager. The Office of the Public Defender received a copy of the petition and on February 16, 2006, instructed defendant to file the petition with the Essex County Criminal Division Manager's office in order to determine whether counsel should be appointed to represent him. Defendant did not file the petition until September 12, 2006. Counsel was assigned on September 22, 2006, and subsequently submitted a brief contending that trial counsel was ineffective in failing to challenge the applicability of NERA to both indictments, and advise defendant of the NERA post-incarceration period of parole supervision.
In a February 28, 2008 written opinion, the trial judge denied the petition on procedural grounds. After finding not credible defendant's claim that he mailed his PCR petition to the Criminal Division Manager on February 9, 2006, the judge concluded that the petition was untimely, and defendant failed to establish excusable neglect.
The judge also denied the petition on the merits concluding that defendant was informed of the NERA parole supervision requirement at the plea hearing and signed the NERA form that expressly set forth the parole supervision requirement. The judge also concluded ...