On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-06-00322; 03-09-00569.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sabatino.
Defendant, Philip M. Belton, Jr., appeals from the October 19, 2009 order denying his petition for post-conviction relief (PCR). Defendant is serving an aggregate sentence of seven years imprisonment, subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, arising out of the sentences imposed on May 20, 2005 on two separate Somerset County indictments.
The sentences on these indictments were ordered to be served concurrently, in accordance with defendant's plea agreement with the State. They were also ordered to be served concurrently with sentences defendant was already serving that had been imposed in Hudson and Essex Counties. Although this aspect of the concurrency was not part of defendant's Somerset County plea agreement, the Somerset County prosecutor did not object, based upon the representation of defendant's counsel that the judges in Hudson and Essex Counties had expressed their intention that their sentences run concurrently with each other and with any sentence to be later imposed in Somerset County on defendant's pending charges there.
The sole issue raised in defendant's PCR proceeding was that his attorney was deficient at the time of his sentencing for not arguing that the court should have awarded defendant 113 days of discretionary jail credits. Defendant also sought an evidentiary hearing. The PCR court denied defendant's petition and declined to conduct an evidentiary hearing.
On appeal, defendant argues:
TRIAL COUNSEL'S FAILURE TO MOVE FOR DISCRETIONARY JAIL CREDITS AT THE TIME OF SENTENCING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.
REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF.
We reject these arguments and affirm.
Somerset County Indictment No. 03-06-00322 charged defendant with second-degree robbery and fourth-degree resisting arrest. The underlying incidents occurred on April 19, 2003. Somerset County Indictment No. 03-09-00569 charged defendant in seven counts for conduct arising out of a single incident on August 1, 2003. The first three counts charged possession, possession with intent to distribute, and possession with intent to distribute within 1000 feet of a school a controlled dangerous substance (CDS), namely, heroin. Counts four, five and six, contained similar ...