On appeal before the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2041.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Espinosa.
Defendant, Andrew Dennis, appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).
For the following reasons, we reverse and remand for an evidentiary hearing.
Defendant and two co-defendants were indicted for multiple counts each of first-degree robbery, N.J.S.A. 2C:15-1; aggravated assault, N.J.S.A. 2C:12-1b(1), (3) and (4); second-degree armed burglary, N.J.S.A. 2C:18-2; weapons offenses, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:39-5b; conspiracy, N.J.S.A. 2C:5-2; and one count of third-degree criminal restraint, N.J.S.A. 2C:13-2. These charges stemmed from an armed robbery and shooting of a drug dealer on August 4, 2000 in Atlantic City.
At his arraignment on November 15, 2000, defendant was presented with the State's initial plea offer pursuant to Rule 3:9-1(b). The offer provided for defendant to serve ten years in prison with an 85% period of parole ineligibility, and was neither conditioned on defendant providing testimony against his co-defendants nor on them entering guilty pleas together. The offer was not accepted at that time. Over the next four months, defendant appeared for four status conferences, the first and last before the same pre-trial judge. At the final pre-trial conference, on February 7, 2001, the State extended another plea offer for defendant to serve ten years in prison with an 85% period of parole ineligibility in exchange for a guilty plea and defendant's truthful testimony against his co-defendants at trial. Defendant rejected this plea offer as well.
Following a joint jury trial, defendant and his co-conspirators were convicted of all charges save one count of armed robbery, which the court dismissed sua sponte during trial. Co-defendants, who were not extended term eligible, were each sentenced to an aggregate term of thirty years imprisonment with a 25.5 year period of parole ineligibility. In sentencing defendant, the court granted the State's motion for a discretionary extended term as a persistent offender, N.J.S.A. 2C:43-7, and imposed upon him an aggregate sixty-year term of imprisonment with a fifty-one year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed defendant's judgment of conviction. State v. Dennis, No. A-424-01T4 (App. Div. June 29, 2004). The Supreme Court granted defendant's petition for certification, State v. Dennis, 182 N.J. 428 (2005), and later affirmed his judgment of conviction, State v. Dennis, 185 N.J. 300 (2005).
Thereafter, defendant filed a timely PCR petition and motion to correct an illegal sentence.*fn1 In support of his PCR petition, defendant submitted a certification of his trial counsel who attested that:
[I]t is more likely th[a]n not that I failed to advise the defendant that he was subject to a term of incarceration of 60 years in which he must serve 85% before becoming eligible for parole. It is likely that I advised the defendant that he was subject to a term of incarceration of 20 years in which he must serve 85% of such term before being eligible for parole. I believe this is so since at sentencing I remember being surprised that the defendant received a term of 60 years in which he must serve 85% before becoming eligible for parole.
Defendant also submitted his own certification in which he attested that trial counsel advised him "that the most I would receive if I lost at trial was 20 with an 85%[,]" and that had he been aware of his exposure to an extended term or consecutive sentences, he would have taken "the plea of ten years without a doubt whatsoever."
The PCR court denied defendant's petition, including his request for an evidentiary hearing.*fn2 Defendant appealed and moved to enlarge the record on appeal to include transcripts from the four pre-trial conferences that defendant attended. We denied the motion and remanded to permit defendant to submit the additional ...