On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-03-0379.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Ashrafi and Nugent.
Defendant, Derrick Lennon, appeals from the April 28, 2009 order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
On March 21, 2002, a Burlington County grand jury indicted defendant and co-defendant, Dolores Stanickyj, on four counts arising out of a carjacking on December 31, 2001. On April 4, 2002, a Camden County grand jury indicted defendant and Stanickyj on six counts arising out of the robbery of a woman on January 1, 2002. According to the plea hearings and presentence reports, on the night of December 31, 2001, defendant and Stanickyj approached a woman at a WaWa store and asked for a ride to a nearby Burlington County motel. The woman agreed. When they arrived at the motel, Stanickyj pulled the woman into the back seat and took items from her purse as defendant drove away. Shortly thereafter, they released the woman at a Dollar Store, drove to a Dunkin Donuts in Camden County, and accosted a second victim. Stanickyj grabbed the victim's purse and pulled her toward the car, and defendant threatened to hit her with a hammer if she did not release the purse. The victim complied. Defendant drove away but was arrested a short time later in Camden County. He remained in jail until sentencing.
Defense counsel did not move to consolidate the Burlington and Camden County indictments. On October 15, 2002, defendant pleaded guilty to count one of the Camden County indictment charging him with first degree robbery. On December 6, 2002,*fn1 he was sentenced in accordance with his plea agreement to a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant received a credit of 339 days for the time he was in custody before sentencing. The sentencing judge also imposed appropriate fines and penalties.
On April 21, 2003, defendant pleaded guilty to count one of the Burlington County indictment charging him with first degree carjacking, in exchange for dismissal of the remaining counts and a seventeen-year term of imprisonment with an eighty-five percent period of parole ineligibility under NERA. During the plea hearing, the judge explained the consequences of NERA and asked defendant if he understood them. Specifically, the judge explained:
THE COURT: Now, because of the nature of this charge, the carjacking, it's what we call a No Early Release Act plea, so your offer is based on that so the offer is seventeen years, but you have to do at least eighty-five percent of it before you would be considered for parole. Do you understand that?
THE COURT: And that eighty-five percent turns out to be fourteen years, five months, fourteen days. Do you understand that?
On May 9, 2003, the court sentenced defendant in accordance with the plea agreement and imposed appropriate fines and penalties. The sentence was to be served concurrently with the Camden County sentence. Defendant received 154 days of gap time credit under N.J.S.A. 2C:44-5b(2) for the time he was in custody between the December 6, 2002 Camden County sentencing and the May 9, 2003 Burlington County sentencing; however, there was some confusion about the credits defendant was to receive:
MR. LUCIANO [Prosecutor]: Yeah. I was just going to say that there's a 154 days of jail ...