On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-07-0839.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Axelrad and J. N. Harris.
Defendant Fred Lehman appeals from the denial of his application for post-conviction relief (PCR) without an evidentiary hearing. He raises the following arguments for our consideration:
POINT I: THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS TRIAL COUNSEL FAILED TO MOVE TO SUPPRESS THE EVIDENCE SEIZED FROM HIS MOTOR VEHICLE.
B. THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS POST CONVICTION RELIEF ATTORNEY FAILED TO ARGUE THAT THERE WAS NO PROBABLE CAUSE FOR THE DEFENDANT'S ARREST AND FAILED TO ARGUE THAT INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BASED UPON ALLEGATIONS AND EVIDENCE OUTSIDE THE RECORD CANNOT BE DISPOSED OF WITHOUT A HEARING.
POINT II: NOTWITHSTANDING THE MERITS OF DEFENDANT'S ARGUMENTS, THE PETITION FOR POST CONVICTION RELIEF SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
We have considered these arguments in light of the record and applicable legal standards. None of the issues is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm, substantially for the reasons expressed by Judge Thomas S. Smith, Jr., and add the following comments.
Defendant was indicted by a Burlington County Grand Jury for one count of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). He agreed to plead guilty to the indictment in exchange for the State's recommendation of a two-year period of probation, conditioned upon 180 days of imprisonment in the Burlington County Jail, to be served as a reverse-split sentence.
In his sworn plea allocution, defendant expressed a factual basis for the plea, and stated that he understood the terms of the arrangement with the State. He further noted that he was not forced or coerced in any way to plead guilty. Most importantly, he indicated that he had adequate time to discuss the matter with his attorney, his attorney had answered all questions posed, and he was satisfied with his attorney's legal representation.
The transcript reflects that on the morning of the plea allocution (which occurred in the afternoon, after lunch), defense counsel initially indicated that the parties could not reach a satisfactory agreement, and "[defendant] will be filing a suppression motion and [defense counsel] will have that motion filed by the end of the week." Immediately, it was made apparent that the then-pending plea offer by the State might not "be on the table on a later date." This engendered further discussions between defendant and his attorney, which resulted in the afternoon acceptance of the bargain as presented.
At sentencing, the Law Division honored the bargained-for reverse-split sentence, and imposed a probationary term with 180 days to be served in jail, but "if probation is successfully completed, [the] jail term may be vacated." Although we have not been provided with the judgment determining that defendant violated probation, the ...