On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-07-2848.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges Reisner and Alvarez.
Defendant Damion Alston appeals from an October 3, 2008 order denying his petition for post-conviction relief. We affirm.
In October 2001, defendant agreed with two co-defendants to engage in the armed robbery of a jewelry store. Pursuant to the plan, defendant drove the two accomplices to the jewelry store, where the co-defendants carried out the robbery and shot the store owner to death. Defendant drove the co-defendants from the scene and shared in the proceeds of the robbery.
After being indicted for first-degree murder, defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4, and related robbery and weapons offenses, pursuant to a plea agreement under which the State would recommend an aggregate prison sentence of twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant set forth a detailed factual basis for the plea. In response to further questioning by the judge, he also indicated that he understood that if the judge accepted the plea agreement, he would have to serve "17 years in jail" before becoming eligible for parole.
Gap time was not mentioned at the plea hearing, and at no time did defendant indicate that gap time played any role in his decision to plead guilty. Consistent with the plea agreement, on May 30, 2003, defendant received an aggregate twenty-year NERA sentence, which was made concurrent to a sentence he was already serving for a drug offense. At the sentencing, the judge indicated that defendant was entitled to 505 days of gap time. We affirmed the sentence on an excessive sentence calendar. State v. Alston, Docket No. A-5120-03 (App. Div. Jan. 12, 2005), certif. denied, 183 N.J. 258 (2005).
Defendant then filed the PCR petition from which this appeal arose. In his petition, defendant contended that his trial attorney promised him that the 505 days of gap time, to which he was entitled, would be subtracted from the seventeen-year period of NERA parole ineligibility. Instead, the time will be subtracted from the remaining years of the sentence after defendant serves the NERA portion. See Richardson v. Nickolopoulos, 110 N.J. 241, 245 (1988). Defendant contended that his attorney was ineffective for giving him inaccurate advice.
In an oral opinion placed on the record on October 3, 2008, Judge Nelson, who had also taken defendant's guilty plea and imposed sentence, rejected the PCR petition. Judge Nelson found no likelihood that defendant could succeed on the merits of his claim and therefore that he was not entitled to an evidentiary hearing. First, he considered that defendant failed to raise the gap time issue at the plea hearing, although the judge had explicitly advised him that he would have to serve seventeen years before becoming parole eligible. Second, the judge considered that there was "certainly no dispute as to the allocution of [defendant's] guilt." Finally, the judge reasoned that even if defendant had misunderstood the way his gap time would be applied, there was no chance on this record that defendant would have rejected the plea bargain and risked life in prison by going to trial on the murder charge.
In State v. Nunez-Valdez, 200 N.J. 129 (2009), the Supreme Court most recently addressed the standards applicable to a PCR claim seeking to withdraw a guilty plea based on inaccurate legal advice about the material consequences of a plea agreement. To justify a plea withdrawal, a defendant must satisfy the traditional Strickland/Fritz*fn1 standard, as modified to apply to guilty pleas rather than convictions after trial:
For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that "[defense] counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" We approved of that two-part test in State v. Fritz, 105 N.J. 42, 58 (1987), in which we held that the federal standard for evaluating an ineffective-assistance-of-counsel claim approved in Strickland, supra, 466 U.S. ...