On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 00-10-1977.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Reisner.
Defendant James Burgess appeals from a July 21, 2009 order denying his second petition for post-conviction relief (PCR). We affirm.
In 2003, as he was about to stand trial for shooting at two police officers, defendant entered into a plea agreement pursuant to which he pled guilty to second-degree aggravated assault and weapons possession. Consistent with the terms of the plea agreement, defendant was sentenced to nine years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, plus three years of parole supervision to be served following his prison term. N.J.S.A. 2C:43-7.2(c). The nine- year sentence was imposed concurrent to a sentence that defendant was already serving for an earlier conviction.
Defendant appealed, claiming that the sentence was excessive, but we affirmed the sentence on an Excessive Sentencing calendar. See R. 2:9-11. State v. Burgess, Docket No. A-5454- 02 (App. Div. Jan. 7, 2004), certif. denied, 180 N.J. 457 (2004).
Defendant filed his first PCR petition on September 21, 2004. In that petition, defendant contended that he entered into the plea bargain under a mistaken understanding about the impact of his gap-time credits on the sentence he would receive.
He alleged that his trial counsel mistakenly informed him that approximately 700 days of gap-time credit, to which defendant was entitled, would be applied to reduce the three-year period of parole supervision. Defendant argued that he would not have pled guilty if he had known that the gap-time credits could not be applied to the parole supervision period. Judge John A. O'Shaughnessy rejected that argument and denied the petition. We affirmed. State v. Burgess, Docket No. A-1337-05 (App. Div. March 29, 2007). In our opinion, we found no basis to conclude that defendant would have rejected the plea agreement, regardless of the impact of his gap time on the sentence:
The PCR judge found defendant was appropriately advised of the effect of NERA on his parole opportunities. We need not reach that issue, although we note the State's concession that there was "confusion" attending the explanation of the effect of NERA on defendant's parole. We need not reach the issue because we agree with the PCR judge that defendant's failure to demonstrate he would not have entered the plea had he been given the correct information is fatal to his claim of ineffective assistance of counsel.
The record does not contain the PCR application and we have nothing before us other than a statement in defendant's brief that he would have insisted on a trial had he been advised that he would be required to serve a three-year probationary period after release from custody. The record is quite the contrary. Defendant was thirty-two when he pled guilty. He was charged with being involved in shooting at two Jersey City police officers and he had an extensive criminal record, including five previous indictable convictions. His criminal record would have rendered him eligible for an extended term, N.J.S.A. 2C:44-3, and the seriousness of the offense placed him at risk of a sentence at the high end of the permissible range. Moreover, since the charges involved crimes with multiple potential victims, consecutive sentences were a distinct possibility. See State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
The sentencing judge commented on the likely consequences of a conviction: "[Y]our lawyer has done a great service to you and you should be thanking her for the work she has done for you and saving you from going to trial and getting a sentence that would make you a very old man when you left state prison." Defendant has made no attempt to explain what would impel him to reject so favorable a sentence recommendation. We agree with the PCR judge that defendant failed to make a prima facie case of entitlement to relief as a result of ineffective assistance of counsel.
In 2009, more than six years after his conviction, defendant filed a second PCR raising the same gap-time issue he raised unsuccessfully in the first PCR. Before the oral argument on the petition, the State offered to resolve the matter by consenting to a ...