On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 01-02-0475 and 01-04-0760.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 31, 2011
Before Judges C.L. Miniman and LeWinn.
Defendant Darion Fields appeals from the denial of his petition for post-conviction relief (PCR) in connection with his convictions on March 4, 2003, for first-degree armed robbery and first-degree aggravated manslaughter, a negotiated reduced charge from the murder charged in the indictment. The first offense was committed on October 2, 2000, and the second offense was committed on October 7, 2000. We affirm.
Because the issue on this appeal relates exclusively to the plea bargain, the facts of the case are not relevant to the issues before us and are not recited here. Defendant executed a plea agreement that indicated the aggregate statutory maximum for aggravated manslaughter and armed robbery was fifty years. Multiple counts in both indictments were to be dismissed. The prosecutor agreed to recommend twelve years on the aggravated manslaughter and ten concurrent years on the armed robbery subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The plea agreement did not calculate any credits for the time defendant had been in jail prior to his guilty plea. However, there was a Supplemental Plea Form for NERA cases. On that form, defendant stated that he understood that, because of his plea to first-degree aggravated manslaughter and first-degree armed robbery, he would be required to serve eighty-five percent of the sentences imposed before he would be eligible for parole. He also stated that he understood "that by pleading guilty to these charges, the minimum mandatory period of parole ineligibility is 10 years and 2 months." The State further agreed that it would recommend that defendant be treated as a second-degree offender for sentencing purposes.
During his plea allocution, the State agreed to recommend a sentence of twelve years on the aggravated-manslaughter charge subject to NERA with a dismissal of the balance of the indictment regarding the offenses on October 7, 2000. The State also recommended that defendant be sentenced one degree lower for the armed-robbery and recommended ten years subject to NERA. The balance of the charges relating to the October 2, 2000, crimes were to be dismissed.
Defendant testified during his plea allocution that he understood that the sentence on the aggravated-manslaughter charge would be twelve years and that he would be ineligible for parole for ten years, two months, and thirteen days. On the armed-robbery charge defendant agreed that he understood the sentence would be ten years with a parole ineligibility period of eight years, six months, and two days to be served concurrently with the longer sentence. Defendant stated he also understood he was being sentenced at the highest end on the range of sentences for the armed-robbery and toward the lower end for the aggravated manslaughter. Finally, both sentences were to run concurrently to a sentence defendant was already serving from a charge in Essex County.
The judge advised defendant that the NERA plea form was slightly incorrect in that it did not reflect the additional thirteen days of parole ineligibility on the aggravated-manslaughter charge. Additionally, each sentence was to carry five years of parole supervision to be completed concurrently. Defendant had no questions of the judge or his attorney respecting the plea or the sentence to be recommended by the prosecutor.
Defendant was sentenced on May 29, 2003. The judge found aggravating factors three, six, and nine and one mitigating factor, remorse. With respect to both offenses, the judge sentenced defendant in accordance with the plea agreement. The judge summarized:
Again, concurrent . . . sentence on both, and the 85 percent on the 12 year[s] will be ten years, two months, 13 days served. On the armed robbery it will be eight years, six months, two days served concurrent. Credit for 935 days.
Defendant stated he understood the sentence.
A judgment of conviction was entered on May 29, 2003, on the aggravated-manslaughter conviction,*fn1 which stated that the sentence was "TWELVE YEARS WITH TEN YEARS, TWO MONTHS AND
THIRTEEN DAYS PAROLE INELIGIBILITY 85% RULE APPLIES; GRAVES ACT APPLIES; 5 YEARS ADDITIONAL PAROLE SUPERVISION CONCURRENT WITH IND. #760-04-01 AND CONCURRENT WITH ESSEX COUNTY SENTENCE." At the bottom of the form, the judge indicated that "[d]efendant is to receive credit for time spent in custody (R. 3:21-8)" for eighteen days between October 19 and November 5, 2000. The judgment of conviction also indicated that "[d]efendant is to receive gap[-]time credit for time spent in custody (N.J.S.A. 2C:44-5b(2))" of 935 days from November 6, 2000 to May 29, 2003.
The judgment of conviction for the first-degree armed robbery entered on May 29, 2003, reflected the same credits for time spent in custody. Defendant did not file a ...