On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation Nos. 07-01-0237 and 06-10-3461.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Gilroy and Nugent.
Defendant Anthony Franke appeals from an order denying his petition for post-conviction relief (PCR). We affirm.
On September 4, 2006, the police arrested defendant and charged him with burglary, theft, and resisting arrest after he broke into a garage, stole items from a car, and attempted to elude police officers. On October 18, 2006, defendant pleaded guilty to Accusation No. 06-10-3461 charging him with third-degree burglary, N.J.S.A. 2C:18-2, in exchange for the State recommending probation conditioned on defendant serving 180 days in jail or in a work-release program, and agreeing to defendant's release from jail on his own recognizance pending sentencing. Before he was sentenced on the burglary charge, defendant committed another crime.
On December 22, 2006, defendant stole drugs from a CVS pharmacy and was arrested and charged with robbery, shoplifting, criminal mischief, and simple assault. As the result of committing another crime, defendant re-negotiated his burglary plea. On January 18, 2007, he pleaded guilty to third-degree burglary in exchange for the State recommending a three-year term of imprisonment. Defendant also pleaded guilty to Accusation No. 07-01-237 charging him with third-degree theft of property from the person, N.J.S.A. 2C:20-3a and 2C:20-2b(2)(d), for the CVS theft. In exchange for that plea and defendant's agreement not to appeal, the State recommended a four-year term of imprisonment with eighteen months of parole ineligibility.
Defendant acknowledged during the plea hearing that he had enough time to talk with his attorney, his attorney answered all of his questions, and he was satisfied with the attorney's services. On February 2, 2007, the court sentenced defendant in accordance with the plea agreement and imposed appropriate fines and penalties.
Defendant did not file a direct appeal, but instead filed a PCR petition, alleging he was wrongfully accused of theft from the person "due to the [f]act the person who stopped me was not employed [a]t the CVS I was shoplifting [a]t." The court assigned counsel to defendant and he subsequently amended the petition, alleging that trial counsel was ineffective for failing to have him admitted into a drug court program and for failing to file a motion to suppress evidence from the burglary.
In support of his petition, defendant filed a certification that his
attorney met with him on the day of each plea hearing and said he had
secured a plea agreement that defendant should accept, but did not
discuss the case, drug court, or a suppression motion.*fn1
Defendant also certified to his long history of drug abuse
and explained that he did not disclose his drug history before
sentencing because he thought the court would hold it against him. In
further support of defendant's
petition, PCR counsel filed a thirty-two page brief and a sixty-four
The trial court gave defendant the opportunity to present evidence at the PCR hearing, but defendant declined. The court denied the PCR petition. After explaining that defendant's claims were procedurally barred because they could have been raised on direct appeal pursuant to Rule 3:22-3, the court decided the claims on the merits. The court determined that defendant admitted to shoplifting from another person; failed to demonstrate a prima facie case that his suppression motion would have been successful; and would not have qualified for drug court because of his prior criminal history and because of the robbery charge resulting from the CVS pharmacy theft. More significantly, defendant never told anyone, including his attorney, about his drug history or that he was using drugs when he committed the crimes.
This appeal followed. Defendant, represented by new counsel, raises the following point for our consideration:
SINCE MR. FRANKE WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF (PCR)
COUNSEL, THE MATTER SHOULD BE REMANDED FOR A NEW PCR HEARING, AND ...