On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-02-0212, 02-06-2177, 02-06-2175, 02-06-2179, 02-06-2181, 02-06-2184 and 02-06-2185.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Graves and Waugh.
Defendant Andrew Holley appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.
On February 20, 2001, Holley entered into a plea agreement with respect to an indictment and an accusation involving drug offenses. He pled guilty to one count of third-degree conspiracy to distribute controlled dangerous substances, contrary to N.J.S.A. 2C:5-2, and one count of third-degree unlawful possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3), from the accusation. He also pled guilty to one count of possession of CDS with intent to distribute from the indictment. Although Holley was eligible for a discretionary ten-year extended term because of his prior convictions, the plea offer was that the State would recommend an aggregate sentence of incarceration for six years, with a two-year period of parole ineligibility. On December 17, 2002, Holley was sentenced in accordance with the plea agreement. The remaining charges were dismissed.*fn1
Holley was subsequently charged in six other indictments for robbery and weapons offenses committed in 2001. On April 15, 2003, during trial on one of those indictments, Holley entered into another plea agreement. He pled guilty to five counts of first-degree armed robbery, contrary to N.J.S.A. 2C:15-1, and two counts of third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b). The State agreed not to seek an extended term or a term consecutive to the one imposed in connection with the earlier plea agreement. The State recommended an aggregate sentence not to exceed twenty years, subject to a period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, at the time the plea was entered, the trial judge told Holley that his intention was to impose an aggregate sentence of twelve years subject to NERA. On September 29, 2003, Holley was sentenced in accordance with the judge's representation. The remaining charges were dismissed.
Holley filed his PCR petition in December 2007, generally alleging ineffective assistance of counsel. In a brief filed in support of the petition, assigned PCR counsel also argued in general terms that trial counsel was ineffective. The brief also argued that Holley received an improperly disparate sentence because his co-defendant was only sentenced to ten years incarceration, also subject to NERA. At oral argument on March 3, 2009, PCR counsel focused the ineffectiveness of counsel argument on trial counsel's failure to ascertain the shorter sentence given to the co-defendant, thereby depriving Holley of the opportunity to seek the same sentence.
Following oral argument, the judge delivered a brief oral opinion dismissing the petition. He issued a detailed written opinion on March 3, 2009. The judge concluded that trial counsel's performance was not deficient, pointing out that Holley faced an aggregate sentence of 110 years, but received an aggregate sentence of twelve years, even though the State had recommended twenty years. He further concluded that the two-year disparity between Holley's sentence and that of his co-defendant was justified by their different criminal histories and the fact that Holley had pled guilty to additional offenses. Consequently, the judge found no disparity requiring correction pursuant to State v. Roach, 146 N.J. 208, 232 (1996). The judge also held that, because the issue of sentence disparity should have been raised on direct appeal, it was subject to the bar of Rule 3:22-4(a). This appeal followed.
On appeal, Holley raises the following issues:
THE SENTENCE IMPOSED WAS NOT BASED UPON AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY COMPETENT CREDIBLE EVIDENCE IN THE RECORD AND WAS EXCESSIVELY DISPARATE FROM THAT IMPOSED ON THE CO-DEFENDANT.
Having reviewed the issues raised on appeal in light of the record and the applicable law, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). Consequently, we affirm essentially for the reasons set forth in Judge Thomas R. Vena's March 3, 2009 oral and written opinions.
We add only that the issue of failure to articulate the aggravating and mitigating factors was not raised on direct appeal or in the PCR petition filed in the Law Division. Consequently, it is not appropriately before us. R. 3:22-4(a). In any event, our review of the record reveals that the ...