On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-06-0734.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 13, 2010
Before Judges A.A. Rodriguez and C.L. Miniman.
Defendant Emanuel Ross appeals from the denial of his application for post-conviction relief (PCR). Because defendant was entitled to an evidentiary hearing on his application, we reverse and remand for such a hearing.
On July 9, 2003, defendant pled guilty to one count of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b, in exchange for which the State agreed to dismiss three assault charges and three weapons charges and recommend a sentence of fifteen years subject to the parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five subsequent years of parole supervision. Defendant was to receive jail credit for time served from April 17, 2001, to the time of sentencing.
At his plea allocution, defendant testified that he hit the victim with a gun several times on January 27, 2001. The co-defendant then tied up the victim and gave the victim a cell phone to call a few people to ask them to bring money to pay defendant the money the victim owed him. None of the people the victim called ever arrived, and after three or four hours, defendant and his co-defendant released the victim. During the course of the plea allocution, the judge asked defendant, "Are you satisfied with the advi[c]e you received from [defense counsel]?" Defendant answered, "Yes." The judge accepted the guilty plea and scheduled sentencing for the future.
At the time of his sentencing on November 21, 2003, defendant stated that he had been offered a deal of nine years.
The nine-year agreement, . . . my family is not here to validate this, but at one time, I sent my family to [defense counsel's] office and asked her to see if she could get me seven. If not seven, I'll take nine.
The response was, we don't know who's testifying right now. It's still early. We can always get the nine back, but it's scheduled for trial. That --in three years, . . . the deal never changed. It was always nine. Then the day that I find out that my co-defendant is testifying, . . . I'm under the assumption that I have to live with the nine.
After some discussion about the appearance of his family members at sentencing, defendant continued:
[F]rom the first prosecutor I had, he told me if I copped out, the deal would be nine years, no more than ten years. That's what Jose [Ortega] said, the first prosecutor.
He never changed the deal in three years that this case has been going on for three years. My lawyer told me that we can always get the nine back.
Defendant's counsel explained that the nine-year term was to be consecutive to the five-year sentence defendant was already serving, but the fifteen-year term was to run concurrently. Then the prosecutor stated that Mr. Ortega was no longer in the prosecutor's office, and the ...