On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 05-11-1974 and 05-12-2282.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and C.L. Miniman.
Defendant Anthony R. Beam appeals from a final order denying his motion for post-conviction relief (PCR) in connection with his conviction for second-degree robbery, contrary to N.J.S.A. 2C:15-1, charged in Indictment No. 05-11-1974; and fourth-degree shoplifting, contrary to N.J.S.A. 2C:20-11b(1), charged in Indictment No. 05-12-2282. He was sentenced to a term of five years on the robbery conviction, subject to the parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to eighteen months on the shoplifting charge to run concurrently with the five-year term. Both charges were to be served consecutively to time then being served on a third indictment. We affirmed his convictions and sentences on both indictments by order following argument on an Excessive Sentence Oral Argument calendar. State v. Beam, No. A-4316-06 (App. Div. Dec. 11, 2007). We now affirm the denial of PCR.
Indictment No. 05-11-1974 charged defendant with committing a theft on August 14, 2005, in the City of Hackensack, during which he "use[d] force upon Vladimir Aste and/or did inflict bodily injury upon Vladimir Aste." Indictment No. 05-12-2282 charged defendant with shoplifting on September 13, 2005, at the ShopRite in Hackensack when he took merchandise with the intention of depriving the merchant of its possession without paying the full retail value of over $200. Defendant pled guilty to both offenses on October 2, 2006.
When he entered his guilty plea, defendant testified that he had sufficient time to discuss the matter with his attorney, who answered all of his questions. He expressed that he was satisfied with her legal services and that he was pleading guilty voluntarily. Moreover, he denied that anyone had threatened him or forced him in any way to plead guilty. He acknowledged being aware of all of his constitutional rights and understood that he was surrendering them by pleading guilty. He understood that robbery was a second-degree crime subject to a jail term between five and ten years, and that the State was recommending five years. He acknowledged that NERA applied, which would require that he serve eighty-five percent of the second-degree sentence before becoming eligible for parole. He also understood that shoplifting carried a jail term of up to eighteen months and understood that both sentences would be consecutive to the sentence he was then serving. Finally, he expressed that he understood that the robbery charge carried a three-year term of parole supervision. He further acknowledged the consequences of violating parole and the potential exposure to a term in excess of five years if he did so.
As a factual basis for a plea, defendant testified that he was at the Pathmark in Hackensack on August 14, 2005, where he took merchandise and placed it into his cart. He then pushed the cart out of the store without paying for it. As he was attempting to leave, he was confronted by a security guard and, at that point, he "[go]t into a physical altercation with the security . . . officer." His counsel then asked:
Q. And the security guard alleges injury in this case. Do you accept that as true with the documents that we've seen?
Defendant's counsel asked to have a moment with her client after which an off-the-record discussion occurred. When then asked if he accepted the reported injury as true, defendant responded yes.
Defendant also testified that he was at the ShopRite in Hackensack on September 13, 2005, when he took or carried away property, food, or merchandise that did not belong to him, and admitted that the amount of the merchandise exceeded $200. On cross-examination by the prosecutor, defendant admitted that he knew the security guard was named Vladimir Aste. The judge found this testimony to be a sufficient factual basis for the guilty pleas and scheduled sentencing in the future, at which time the judge sentenced defendant in accordance with the plea agreement.
In defendant's pro se petition for post-conviction relief, he alleged that his lawyer deceived him as follows:
[S]he drew up a document[,] said it was the prosecutor[']s office. If I didn't cop out I would receive 411/2 years. She also got me to sign my plea based on the fact that she would appeal cert[ai]n aspects of my case, she hasn[']t done so to this date. There are ...