On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 02-06-0913, 03-01-0118, 03-02-0235, 03-02-0265.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Simonelli.
Defendant Terry Foreman appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
On January 5, 2002, defendant struck Peter Van Diehl in the head with a hammer as Van Diehl attempted to evict defendant from his apartment. Defendant was indicted under Indictment No. 02-06-913 for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.
On May 8 and 13, 2002, defendant sold cocaine to an undercover detective. He was indicted under Indictment No. 03-02-0265 for two counts of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(10, -5b(3); two counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); two counts of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2.
On June 5, 2002, defendant sold cocaine to the same undercover detective. He was indicted under Indictment No. 03-02-0235 for third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1), -5b(3); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); third-degree possession of CDS, N.J.S.A. 2C:35-10a(1); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2.
The police arrested defendant on August 6, 2002. A search revealed less than one-half ounce of cocaine in defendant's sock. He was indicted under Indictment No. 03-01-0118 for third-degree possession of CDS, N.J.S.A. 2C:35-10a(1).
Following a jury trial on Indictment No. 03-01-0118, defendant was convicted of third-degree possession of a CDS. He subsequently pled guilty under Indictment Nos. 02-06-0913, 03-02-0235 and 03-02-0265 to second-degree aggravated assault, and three counts of third-degree distribution of CDS.
In accordance with the plea agreement, the trial judge imposed five-year terms of imprisonment with two-and-one-half years period of parole ineligibility on each of the CDS convictions. These sentences were concurrent to each other and consecutive to a ten-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated assault conviction. The judge also imposed the appropriate assessments, penalties and fees.
Defendant appealed his conviction and sentence. He withdrew his appeal on September 20, 2005. As a result, the appeal was dismissed. State v. Foreman, No. A-3251-03 (App. Div. Oct. 5, 2005).
The same attorney represented defendant at trial and the plea hearing. In May 2006, defendant filed a PCR petition, contending he was denied the effective assistance of counsel at trial and the plea hearing. Following a hearing, the trial judge concluded that trial counsel rendered ineffective assistance at trial by stipulating to the chain of custody of the narcotics found on defendant and the New Jersey State Police Laboratory results, and stating that the prosecutor was a "good lawyer" and a "friend of mine." The judge ordered a new trial on Indictment No. 03-01-0118.
As to the plea, the judge found no evidence that defendant was forced to plead guilty or misinformed about the consequences of his guilty plea, or that trial counsel's ineffectiveness at trial influenced defendant's decision to plead guilty. The judge also found defendant gave a complete factual basis for the plea after being questioned about the voluntariness of his plea, and that counsel's errors in a prior proceeding were irrelevant as to the analysis required under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). The judge concluded, ...