On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-04-0799.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2010
Before Judges Rodríguez and LeWinn.
Defendant appeals from the July 1, 2009 order of the Law Division denying his petition for post-conviction relief (PCR).
Because we are satisfied that the PCR judge properly denied defendant's petition without affording him a plenary hearing, we affirm.
In April 2005, defendant was charged in an eleven-count indictment with vehicular homicide, aggravated assault, assault by auto, and causing death and serious bodily injury while driving with a suspended driver's license. On October 12, 2005, pursuant to a negotiated plea agreement, defendant pled guilty to second-degree vehicular homicide, N.J.S.A. 2C:11-5, and three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Because of his prior record, defendant was eligible for a discretionary extended sentence pursuant to N.J.S.A. 2C:44-3(a). The State recommended a maximum term of eighteen years on the vehicular homicide count and concurrent seven-year terms on the aggravated assault counts.
In his factual basis for the plea, defendant stated that on the date in question, he was driving a vehicle in Matawan while he was intoxicated. Defendant had one passenger in his car. He lost control of his vehicle, swerved into the lane of oncoming traffic and collided head-on with a taxicab, which contained two passengers. The cab driver was killed, and all three passengers were seriously injured.
On November 30, 2005, defendant's attorney wrote to the judge stating that "[i]mmediately after his guilty plea was entered, [defendant] wrote to [him] . . . stating that he desired to retract his guilty plea and proceed to trial[,]" and that counsel had filed a motion seeking that relief. Counsel went on to advise the judge that, based on correspondence he had received from defendant, he considered "it impossible for [him] to continue to represent [defendant]." Specifically, counsel paraphrased the contents of three postcards defendant had sent to him, in which defendant accused counsel of "providing false advi[c]e in order to induce him to plead guilty as part of an agreement" with the prosecutor, and stated that he was going to "report" counsel "to prevent [his] misleading other clients[,]" in language that counsel characterized as "vulgar and offensive."
On February 3, 2006, the judge granted defendant's motion to withdraw his guilty plea. The judge instructed defense counsel to file a motion to withdraw and ordered that the matter be set down "for a status conference on the return date of [counsel's] motion to withdraw."
The judge noted that defendant had "filed a pro se motion for reduction of bail," but concluded that "since counsel did not join in that, it's nonconforming and so . . . it's going to be denied or dismissed." The judge further stated that if she "let [defense counsel] out of the case," she would afford defendant the opportunity to obtain new counsel and "give him or her a chance to get familiar with the case and . . . set it down for trial."
Defendant then advised the court that he did not wish to proceed to trial, and that he wished to withdraw his motion to vacate his guilty plea. The prosecutor stated that the previous plea was "no longer on the table[,]" and that defendant would have to "plead open ended."
The judge advised defendant that, once his attorney filed his motion to withdraw, she would "see what happens" and defendant could consult with a new attorney and decide how to proceed. Defendant asked about a bail reduction and the judge informed him that he was represented by counsel who was going to ask to withdraw and a bail motion would have to await the appearance of new counsel on defendant's behalf.
It appears counsel never filed a motion to withdraw because, on May 22, 2006, defendant appeared in court with the same attorney and entered an open ended plea to the indictment. The prosecutor then proceeded to recite the State's proofs on each count of the indictment, which included the following: (1) defendant's blood alcohol content was 0.142 at the time of the incident; (2) defendant's car crossed the center lane and hit a taxi cab, killing the driver; one passenger required open heart surgery; another was treated for fractures of his nose, arm and ribs; and the third "suffered serious bodily injury." The prosecutor further placed on the record that defendant's car crossed over a bridge, "rode the guardrail for [forty-five] feet" and collided with the cab with such force that "[b]oth cars were totaled." The prosecutor also introduced an abstract of defendant's driving record showing that his license was suspended on the date in question.
The judge asked defense counsel if he concurred with the prosecutor's rendition of the facts. Counsel stated that he did and the judge proceeded to voir dire defendant as to the knowing and voluntary nature of his plea. Defendant acknowledged that his attorney had visited him in jail and talked to him in court, reviewed the plea form with him and answered his questions, and that he was satisfied with counsel's services.
Counsel then questioned defendant as to the factual basis for his plea; in his responses, defendant acknowledged that one victim had died and the three passengers had sustained serious bodily injuries. Defendant stated that he had no recollection of anything that occurred after his car hit the ...