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November 30, 2010


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-01-0032.

Per curiam.


Submitted November 15, 2010 - Decided Before Judges Lisa and Reisner.

Defendant Carlos Cruz appeals from a December 12, 2008 order denying his petition for post-conviction relief (PCR). We remand this matter for further proceedings consistent with this opinion.


These are the most pertinent facts. In September 2002, defendant escaped from a residential drug program where he was undergoing treatment as part of his sentence for a burglary conviction. While he was at large, defendant participated in a robbery in which the victim was injured. He was apprehended, charged with robbery and escape, and sent back to prison to finish serving the burglary sentence. Under the terms of a plea bargain, defendant, who was represented by Peter Festa, Esq., pled guilty on June 30, 2003, to second-degree robbery and third-degree escape, in exchange for an eight-year sentence*fn1

subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a concurrent three-year flat sentence for escape. Both of those sentences were to run concurrent to the burglary sentence defendant was then serving.

Defendant was sentenced on September 26, 2003. At the sentencing, Festa vigorously argued that defendant was entitled to jail credit from the time he was arrested on the robbery and escape charges until the date of sentencing. The judge rejected that argument, because, but for the escape, defendant would have been serving his burglary sentence. Therefore, when he was captured and returned to prison, the time served was only attributable to the burglary sentence. The judge also rejected arguments from Festa and from defendant that defendant should receive the same six-year NERA sentence as his co-defendants, because defendant had a much more extensive criminal record, including "six prior felony convictions."

Instead, the judge sentenced defendant in accordance with the terms of the plea agreement: an aggregate term of eight years, subject to NERA, with no jail credit. Immediately after imposing the sentence, the judge stated on the record that defendant had forty-five days to file an appeal and if he could not afford an attorney to file the appeal, an attorney would be appointed to represent him. After the judge completed his remarks, the defendant once again questioned why he was not receiving eleven months of jail credit. He then stated "I don't want this plea offer." The judge responded that defendant could "file whatever motions you want" and declined to entertain any further argument.

Defendant did not file a direct appeal from his conviction, but he filed a pro se PCR petition on March 19, 2008, within the five-year time limit set by Rule 3:22-12(a). In his petition he contended that his trial attorney rendered ineffective assistance of counsel by failing to file a direct appeal on his behalf challenging the disparity between defendant's sentence and the sentences imposed on the co-defendants. After counsel was appointed for him on the PCR petition, defendant filed a supplemental certification attesting that Festa had told him that he would "get the eleven months credit from my time in jail towards my prison sentence, and that is one of the reasons that I ended up entering the guilty plea." He also repeated his allegations that Festa failed to follow up on his request that an appeal be filed, and never told him that he could apply for Public Defender representation if he could not afford to pay Festa to file the appeal.

In another certification, defendant alleged that Festa also failed to honor his request to file a motion to withdraw the plea. Defendant also alleged that "about 21/2 years ago" he had sent in "paperwork" to file an appeal, to the Passaic County Criminal Case Management Office. He received no response and eventually learned from fellow inmates that he could file a PCR petition.

At oral argument on the PCR petition, on October 17, 2008, the judge asked the attorneys to brief the issue of whether a misunderstanding over jail credits, even if it had occurred, would justify allowing defendant to withdraw his plea. He also scheduled a hearing, to be held on December 12, 2008, at which the parties could present testimony from defendant and his former attorney, Festa.

At the hearing, Festa testified that defendant's family retained him to represent defendant on the robbery and escape charges. Festa understood at the time that defendant was being held in the county jail because of his original sentence; that is, even if defendant had made bail on the robbery charge, he would not have been released from jail due to the pre-existing sentence. According to Festa, before defendant agreed to accept the plea, Festa discussed with him what options he would have to challenge any sentence that might be imposed. Those included a PCR petition, "a motion to modify the sentence," or the filing of an appeal. Festa testified that after defendant was sentenced, he visited him in the holding cell and once again reviewed all of those options with him.

Throughout the process, Festa recalled, defendant "felt like he should be getting a better deal," but Festa convinced him that he was being offered "the best deal that he was going to get." Under questioning from the prosecutor, Festa also agreed that the State had considerable evidence against defendant, including confessions from the co-defendants implicating defendant and defendant's own confession to the crime. According to Festa, after the sentencing, defendant told him ...

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