On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-03-0355 and 06-05-0664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010 - Decided Before Judges Gilroy and Ashrafi.
Defendant Carlos Cruz appeals from the October 20, 2008 order that denied his two petitions for post-conviction relief (PCR). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
On March 8, 2005, arising from an incident that occurred on January 26, 2005, a grand jury charged defendant under Indictment No. 05-03-0355 with third-degree possession of a controlled substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1)(9) (count two); and fourth-degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 (count three). On August 2, 2005, arising from an incident that occurred on April 20, 2005, a grand jury charged defendant under Indictment No. 05-08-1032 with third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1). On December 12, 2005, arising from an incident that occurred on August 23, 2005, the State charged defendant under Accusation No. 234-12-05 with fourth-degree possession of a weapon (a stun gun), N.J.S.A. 2C:39-3h.
On December 12, 2005, defendant entered into a plea agreement with the State. Pursuant to the agreement, defendant pled guilty to count two under Indictment No. 05-03-0355; the sole count under Indictment No. 05-08-1032; and the charge under Accusation No. 234-12-05. In exchange for defendant's plea, although defendant was eligible to be sentenced to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a, the State agreed that it would not seek an extended-term sentence, but rather would recommend that defendant be sentenced to an aggregate term of sixteen and one-half years of imprisonment with a five and one-half year period of parole ineligibility. Specifically, the State agreed to recommend that defendant be sentenced to twelve years of imprisonment with five and one-half years of parole ineligibility on count two of Indictment No. 05-03-0355; three years of imprisonment on the single count of Indictment No. 05-08-1032; and eighteen months of imprisonment on Accusation No. 234-12-05, the sentences to run consecutive to each other.
On January 30, 2006, the court sentenced defendant on count two under Indictment No. 05-03-0355 to a sixteen-year term of imprisonment with a five and one-half year period of parole ineligibility; on the single count under Indictment No. 05-08-1032, to a five-year term of imprisonment; and on the charge under Accusation No. 234-12-05, to a nine-month term of imprisonment, all sentences to run concurrent with each other. Accordingly, the court sentenced defendant to an aggregate term of imprisonment of sixteen years, rather than the sixteen and one-half years defendant had agreed to under the terms of the plea agreement.
In the interim on May 16, 2006, arising from an incident that occurred on November 23, 2005, a grand jury charged defendant under Indictment No. 06-05-0664 with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count three); third-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count seven). On November 13, 2006, defendant pled guilty to count two of the indictment in exchange for the State recommending a seven-year term of imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the sentence to run concurrent with the sentences defendant was then serving under the prior two indictments and accusation.
On February 13, 2007, the court sentenced defendant pursuant to the terms of the plea agreement to a seven-year term of imprisonment with an 85% period of parole ineligibility pursuant to NERA. The court directed that this sentence run concurrent with the sentences defendant was then serving and awarded defendant sixty-two days of jail credit (November 29, 2005 to January 29, 2006) and 380 days of gap-time credit (January 30, 2006, to February 13, 2007).
Defendant timely filed two PCR petitions challenging the sentences imposed under Indictment Nos. 05-03-0355 and 05-08-1032, and Accusation No. 234-12-05 (collectively hereinafter referred to as Indictment No. 05-03-0355), and to the conviction and sentence imposed under Indictment No. 06-05-0664. Assigned counsel subsequently filed briefs in support of each petition. In the petition challenging the sentences imposed under Indictment No. 05-03-0355, defendant argued that he was denied effective assistance of counsel because his trial attorney filed a motion seeking a Wade*fn1 hearing, causing the State to withdraw a prior plea offer of a lesser sentence than that which he had later accepted under the plea agreement. Defendant also argued that trial counsel failed to properly explain the terms of the plea agreement to him before he accepted it and allocuted. In his challenge to the conviction and sentence imposed under Indictment No. 06-05-0664, defendant again argued that he was denied effective assistance of counsel because his attorney had "told him he would receive jail credit for 380 days he had already spent in custody on his previous charges," not gap-time credit. Defendant also contended that his attorney failed to file a motion to withdraw his plea as instructed. On October 20, 2008, the trial court entered an order without an evidentiary hearing denying defendant's petitions.
On appeal, defendant argues:
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FROM BOTH OF HIS TRIAL ATTORNEYS, ONE WHO FILED A MOTION WITHOUT DEFENDANT'S PERMISSION THAT CAUSED THE STATE TO WITHDRAW A PLEA OFFER THAT DEFENDANT WAS PREPARED TO ACCEPT AND THE OTHER WHO MISINFORMED DEFENDANT AS TO THE NATURE OF THE CREDITS THAT HE WOULD RECEIVE PURSUANT TO THE TERMS OF THE PLEA AGREEMENT.
The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn2 See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, 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.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).
"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error ...