On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 94-01-0142.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011
Before Judges Graves and Waugh.
Defendant Kevin Money appeals the dismissal of his petition for post-conviction relief. We affirm.
We discern the following facts and procedural history from the record on appeal.
In 1994, Money was indicted for a variety of drug and weapons offenses, as well as first-degree murder. He accepted a plea offer from the State, under which he agreed to plead guilty to the first-degree crime of being the leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:35-3, and the State agreed to recommend a custodial sentence of fifty years, with a fifteen-year period of parole ineligibility.*fn1 The remaining charges, including a second indictment charging additional drug offenses, were to be dismissed at the time of sentencing.
Money entered the guilty plea on May 6, 1996. He represented to the plea judge that he was acting voluntarily, that he had consulted with his attorney about his rights and the plea, and that he understood the plea agreement. He set forth a factual basis for the plea in which he admitted that, from December 1990 to October 1992, he was the leader of an organization known as "the Sons of Malcolm X" and that the purpose of the organization was to "[d]istribute drugs to the drug sets and sell drugs." As part of his involvement, he admitted that he got "people to organize various sets" and "work for [his] group selling drugs." He further admitted that he "controlled all of them."
On June 14, 1996, Money appeared for sentencing. The judge found no mitigating factors under N.J.S.A. 2C:44-1(b). He found aggravating factors three, five, six, and nine. N.J.S.A. 2C:44-1(a)(3), (5), (6), and (9). He accepted the plea and imposed the negotiated sentence. There was no appeal following the sentence.
At the time of the plea and sentencing, Money was represented by David Assad, Jr., who had been admitted to the Bar in 1983 and was disbarred in 2001. On September 20, 1993, Assad was suspended from practice for failure to pay his annual assessment for the Fund for Client Protection. He was reinstated on January 18, 1994. Money contends that Assad was representing him during some or all of that period. However, Assad was not under suspension at the time of the plea in May 1996 and sentencing in June 1996. At the plea hearing, Assad told the judge that the "plea agreement [was] a culmination of about six months of intensive negotiations with the Prosecutor's Office." Assad was not under suspension during that six-month period.
Assad was suspended again for the same reason on September 30, 1996, and reinstated on February 13, 1997. By the time of that suspension, Money's time to appeal had expired. R. 2:4-1(a). There was a third period of suspension for non-payment in 1997 and 1998. Assad was charged with misappropriation of client funds and disbarred by consent on May 10, 2001.
On February 21, 2008, Money filed a pro se application to withdraw his guilty plea. He relied on Assad's temporary suspension during the period of representation as grounds for relief, as well as an explanation of the late filing of his application.*fn2 He also claimed that Assad had not advised him of his right to appeal and that there had been no factual basis for the plea. Money's application was treated as a PCR petition, and counsel was appointed to represent him.
Although an evidentiary hearing had originally been scheduled, the PCR judge cancelled the hearing and denied the petition on the papers. He issued a detailed written opinion, in which he concluded that the petition was time-barred pursuant to Rule 3:22-12, and that Money had not established excusable neglect to warrant relaxation of the time limitations. The judge also concluded that the original plea was entered into knowingly and voluntarily, and that there ...