On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 02-01-0018, 04-12-1798, and 05-06-0872.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 1, 2010 '
Before Judges A.A. Rodriguez and C.L. Miniman.
Defendant Leander Williams appeals from the denial of his application for post-conviction relief (PCR) following his guilty plea to third-degree distribution of cocaine on or near school property, contrary to N.J.S.A. 2C:35-5a, -7. We affirm.
On October 29, 2004, the New Brunswick police set up surveillance in the vicinity of Remsen Avenue and Seamen Street. That was a location known for a high incidence of narcotics activity. The police observed defendant standing on the corner in front of a liquor store while an unidentified man riding a bicycle rode up to him. Defendant spit something into the man's hand, and the man gave defendant cash and rode off on the bicycle.
Shortly after, co-defendant Theodore Wright approached defendant on the bicycle, and the same thing occurred. Wright rode off on the bicycle and was stopped by other New Brunswick police officers a short distance from the intersection of Commercial Avenue and Townsend Street. A package of cocaine was recovered from Wright's pocket and that information was conveyed to the surveilling officers, who moved in and arrested defendant, recovering $725 from his pocket.
After several pretrial motions, defendant sought to be released on bail, having been held on a violation of probation since his arrest. On October 5, 2005, the judge denied the application. On October 17, 2005, defendant pled guilty to third-degree distribution of cocaine within 1000 feet of a school zone. Defendant's sentencing was scheduled for December 12, 2005. At that time, he moved to withdraw his plea. The judge denied the request because there was no indicated basis for the withdrawal. Defendant was then sentenced in accordance with the plea agreement, which indicated that the prosecutor would dismiss three of the four charges in the indictment and recommend a sentence of ten years incarceration with five years of parole ineligibility.
On January 13, 2006, defendant filed a notice of appeal from the judgment of conviction entered on December 12, 2005. The appeal was argued on August 22, 2007, and we affirmed the sentence imposed as not manifestly excessive or unduly punitive nor an abuse of discretion by order of affirmance entered that day. Defendant sought certification, but the petition was denied. State v. Williams, 193 N.J. 276 (2007).
While that appeal was pending, defendant moved to withdraw his guilty plea, arguing that no school-zone map had been entered into evidence at the time of his plea. The prosecutor observed that defendant had stipulated that he was within 1000 feet of a school and stated that he could not recall any occasion when a school-zone map was presented at a plea where the defendant was admitting guilt. Defendant, however, contended that he was not physically within 1000 feet of a school, specifically the Redshaw School, as charged in the indictment. Thus, he urged that he was innocent of the offense to which he pled.
In ruling on his application, the judge found that there was a factual basis on the record for defendant's plea and that he knowingly, voluntarily, and intelligently entered into the plea agreement. The judge found that the plea was entitled to finality and that defendant had not demonstrated that a school-zone map had to be produced at the time of the guilty plea. Thus, the judge denied the application. Defendant did not appeal the denial of his motion to withdraw his plea.
On April 8, 2008, defendant filed a pro se PCR petition to which he attached a two-page legal argument. He urged that he "learned that the plea agreement entered was not the plea I accepted." Further, I do not understand how I ended up with a third[-]degree charge with a 10-year term with 5-year parole ineligibility. Neither the prosecutor nor my attorney advised me that I was copping out to [a] 10-year term with [a] 5-year parole ineligibility for the third[-]degree charge contained within Indictment No. 04-12-1798-I charging possession with intent to distribute on or near school property. If my attorney, the judge, or prosecutor had explained to me that, I was copping out to [a] 10-year term with 5-year parole ineligibility for a third[-]degree charge which carries 3 to 5 years, I would have never agreed to a 10-year term with 5-year parole ineligibility.
Instead, defendant said that he understood that he was pleading guilty to all three counts in this indictment. He asserted that he could not read or write and relied on his attorney's advice as to what he was pleading. He insisted that he did not plead guilty to an extended term. He understood the extended term to only be imposed if he failed to appear for sentencing.
Subsequently, counsel for defendant filed an amended petition for PCR alleging ineffective assistance of plea counsel, who allegedly failed to investigate and properly verify that the arrest location was within 1000 feet of school property. Additionally, plea counsel was ineffective when he allowed defendant to plead guilty while defendant believed that his cooperation and assistance in ongoing narcotics and other criminal investigations with the State would lessen his sentence. Counsel did not have defendant file an amended petition verifying this allegation. There is no mention in defendant's ...