On appeal from the Superior Court of New Jersey, Camden County, Law Division, Indictment No. 03-06-2076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sabatino.
Defendant John Alivera appeals from the trial court's June 12, 2009 order that denied his petition for post-convictionrelief ("PCR") alleging ineffective assistance of counsel. The State cross-appeals from a provision of that same order, which reduced defendant's period of parole ineligibility by approximately thirty-six days. For the reasons that follow, we affirm the order, with a slight modification respecting defendant's sentence.
Facing a capital murder prosecution for dousing his former girlfriend's mother with gasoline and burning her to death, on July 16, 2003, defendant entered a negotiated plea to first-degree murder, N.J.S.A. 2C:11-3a(1) and (2). Under the terms of the plea agreement, the State agreed to dismiss the numerous other counts in the indictment. In exchange for defendant's guilty plea to non-capital murder, the State agreed to recommend that he be sentenced to forty-three years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 ("NERA").
As noted, the victim was the mother of defendant's former girlfriend. The girlfriend had broken off their relationship. Angered about the break-up, defendant went to the mother's residence, placed her at gunpoint, bound her with duct tape, doused her with gasoline, lit a match, and departed in a waiting cab while the mother burned to death. Defendant was eventually tracked down in California and gave a confession on videotape.
During the course of the plea colloquy, the trial judge meticulously verified that defendant was entering the plea voluntarily, that he understood the consequences of his plea, and that he had discussed the plea with his trial attorney. Although defendant had a history of treatment with psychotropic drugs, he assured the court under oath that he had not taken any medication that would compromise his ability to understand the proceedings that day.
The plea form and the plea colloquy made clear that defendant would be exposed at sentencing to a maximum term of life in prison, that the State would recommend a sentence of forty-three years, and that the sentence imposed would be subject to a parole disqualifier under NERA. The prosecutor represented at the plea hearing that, applying eighty-five percent to the recommended sentence of forty-three years, the corresponding parole ineligibility period would be "exactly
36.45 years." The trial judge adopted the prosecutor's calculation, reiterating to defendant that a forty-three-year sentence would produce a 36.45-year period before defendant could be eligible for parole. In actuality, the prosecutor's calculation was incorrect, as eighty-five percent of forty-three years is 36.55 years, not 36.45 years. This minor computationerror, amounting to a tenth of a year (or about 36 days), went unnoticed at the time.
Defendant was sentenced on August 29, 2003. Defendant's trial attorney urged the court to consider, as a mitigating factor, defendant's long-standing psychiatric problems dating back to the age of four when he was first admitted to a psychiatric hospital. The prosecutor, meanwhile, urged that the court impose a forty-three-year custodial term because of the severity of the offense and the horrific manner in which it was carried out.
Consistent with the plea agreement, the trial judge imposed a forty-three-year custodial term, subject to NERA. The judge provided the following insightful comments explaining why that lengthy sentence was warranted:
So, not only did you [defendant] commit a horrendous crime, but in doing so you took the life of someone who was obviously very special. And you did set a woman on fire. You bound her, [and] you doused her with gasoline. She knew exactly the horror and the pain and the torture that would soon result. And unfortunately, it did.
You had ample opportunity in that time frame to shrink back in horror from what your plan was. You could have retreated from it. You didn't have to light that match after you doused her with gasoline. You ...