On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1354.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges Grall and Alvarez.
This is an appeal from the denial of a petition for post-conviction relief (PCR) by defendant, Laquan Jenkins. Because the court concluded defendant had not established a prima facie case of ineffective assistance of counsel, no evidentiary hearing was conducted. We affirm.
Union County Indictment No. 05-12-1354 charged defendant and his co-defendants, Dashon Davis and Tyrees Williams, with the September 15, 2005 robbery of German Galves, N.J.S.A. 2C:15-1, and the separate unrelated robbery on that same date of Angel Cajamarca. Defendant and Williams were charged in a third count with fourth-degree obstruction, N.J.S.A. 2C:29-1. Pursuant to a negotiated agreement, on June 5, 2006, defendant entered guilty pleas to both robberies. The State in turn agreed to dismiss the obstruction charge and recommend an aggregate sentence of six years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Despite his significant prior criminal history, on September 15, 2006, defendant was sentenced to five years subject to NERA, less than the term agreed upon with the State. At sentencing, the court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6), and nine, N.J.S.A. 2C:44-1(a)(9), and no factors in mitigation. See N.J.S.A. 2C:44-1(b).
Defendant did not pursue a direct appeal. Instead, on February 1, 2008, defendant filed a pro se post-conviction relief (PCR) petition in which he asserted that he received ineffective assistance of counsel because he was convicted of robbery even though the "evidence and facts proved" he was guilty only of theft. PCR counsel was assigned, subsequently filed a brief, and appeared at oral argument in support of the petition.
At oral argument on the petition, defendant contended that his plea counsel was ineffective because he failed to explain to him the differences between the statutory elements of robbery and theft, and the significant sentencing consequences insofar as NERA's eight-five percent parole disqualification. A plea to robbery requires a NERA sentence; a plea to theft does not. Further, defendant argued that he was entitled to relief because of the disproportionately greater sentence imposed upon him as compared to his co-defendants. Lastly, counsel asserted that the request for PCR was not time-barred pursuant to Rule 3:22-12(a).
The PCR court noted that when defendant entered his guilty plea, he testified under oath that he was entering into the plea agreement voluntarily and that he was satisfied with the services of his attorney. During the plea colloquy, defendant acknowledged that he had read the entire written plea agreement and that his attorney had explained each paragraph of the document. Defendant also said he understood everything his attorney had told him. He stated that his attorney had explained the charges and that his answers on the written plea form were true.
While establishing the factual basis for the entry of the guilty pleas to the robberies, defendant admitted to participating in two unrelated thefts while he and others used force or the threat of force "to accomplish their goal" of committing the thefts.*fn1 The PCR court found that the only discrepancy in sentencing between defendant and his co-defendants was that Davis received four years as opposed to the five years imposed on defendant. Accordingly, the PCR application was denied.
On appeal, defendant contends as follows:
DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO ...