On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0209.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2010 - Decided
Before Judges Rodriguez and Grall.
Appellant filed a pro se supplemental brief.
Defendant Victor Cyrus pled guilty and is serving an aggregate ten-year term of imprisonment for first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(1); second-degree distribution of CDS, N.J.S.A. 2C:35-5b(2); and second-degree possession of a firearm by a person convicted of a crime and not permitted to have a gun, N.J.S.A. 2C:39-7b, commonly known as a certain persons weapons offense.*fn1 In addition to the mandatory fees, fines, penalties and assessments, defendant is obligated to pay two penalties under the Anti-Drug Profiteering Act (ADPA), N.J.S.A. 2C:35A-1 to -8; those penalties are $200,000 for first-degree possession with intent to distribute and $100,000 for second-degree distribution. N.J.S.A. 2C:35A-4.
Defendant did not file a direct appeal and now appeals from a denial of post-conviction relief (PCR). He asserts that he did not receive effective assistance of counsel at his guilty plea, sentencing and PCR proceedings. Specifically, defendant argues that the outcome would have been different but for his attorneys' collective failure to: challenge the search that produced the only evidence supporting his convictions for first-degree possession with intent to distribute and the certain persons weapons offense; explain his exposure to ADPA penalties; and oppose imposition of two ADPA penalties rather than the one ADPA penalty contemplated by the plea agreement. Because PCR counsel did not comply with Rule 3:22-6(d), State v. Webster, 187 N.J. 254 (2006), and State v. Rue, 175 N.J. 1 (2002), we reverse and remand to allow defendant to file a new petition with effective assistance of counsel.
Between September 16, 2005 and February 23, 2006, defendant sold cocaine to an undercover officer on nine separate occasions; three of the sales involved a sufficient quantity to constitute a second-degree crime. On November 30, 2005, defendant had another person sell cocaine and bring him the money received. On May 1, 2006, defendant was arrested on an open warrant at his place of business, a deli. Although the officers did not have a search warrant or defendant's consent, with the assistance of trained dogs they found and seized a gun, which was under a couch, and enough cocaine to justify a charge of first-degree possession of CDS with intent to distribute.
To provide context for a discussion of defendant's objections to the assistance provided by his several attorneys, we discuss in detail the proceedings that led to his plea, sentence and denial of his PCR petition and subsequent motions for reconsideration.
The grand jurors for Monmouth County returned a forty-count indictment. They charged defendant with crimes involving possession and distribution of drugs and unlawful possession of weapons.
When defendant was indicted, he had a prior conviction for possession with intent to distribute. Consequently, if convicted of a crime involving distribution or possession of CDS with intent to distribute, he faced a mandatory extended term unless the prosecutor agreed to waive that sanction in accordance with the Brimage guidelines. See N.J.S.A. 2C:35-12; N.J.S.A. 2C:43-6f; N.J.S.A. 2C:43-7c; State v. Brimage, 153 N.J. 1 (1998).
Defendant retained private counsel, Paul W. Bergrin. Thereafter, the State offered a plea agreement promising to: waive the mandatory extended term; dismiss all but four counts of the indictment; recommend a ten-year sentence with a five-year period of parole ineligibility for first-degree possession with intent to distribute and concurrent sentences for the second-degree distribution of CDS and second-degree certain persons weapons offense. The State also gave notice of its intention to seek an ADPA "penalty" and acknowledged that Bergrin could oppose that penalty.
To establish its entitlement to an ADPA penalty, the State conditioned its plea offer on defendant's agreement to an amendment of the indictment that would consolidate nine counts alleging sales to the undercover officer.*fn2 See N.J.S.A. 2C:35-5c (authorizing aggregation of the amounts of CDS involved in separate transactions). During the colloquy at the plea hearing, the State linked its request for an ADPA penalty with defendant's admission to nine sales of CDS to the undercover officer.
Bergrin confirmed that the State's position on the ADPA penalty was consistent with his understanding of the ADPA and the plea agreement. He said he would submit a brief opposing the penalty with ...