On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 03-09-1182.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez, Grall and LeWinn.
Defendant appeals from the July 15, 2009 order denying his petition for post-conviction relief (PCR). The gravamen of his claim is error in the denial of relief based on ineffective assistance his attorney provided in negotiations and at sentencing. We affirm.
Defendant waived indictment by grand jury and on September 18, 2003, he pled guilty to an accusation charging him with first-degree armed robbery, N.J.S.A. 2C:15-1; and first-degree carjacking, N.J.S.A. 2C:15-2(a)(1). His plea form notes that the "State will recommend [fifteen] years . . . on each count of [the] accusation. [The] State will argue for consecutive terms. This is a NERA*fn1 . . . case. . . ."
At the plea hearing, the judge engaged in the following colloquy with defendant regarding the recommended sentence:
Q Now you understand that the plea bargain . . . sets forth that . . . they will recommend [fifteen] years in [s]tate
[p]rison each count, the sentence not to exceed?
Q And they will seek to ask the [c]court on your sentencing day to have those terms made consecutive to each other. Do you understand what that means?
Q That means that the State will seek . . . to have you sentenced to [thirty] years total in state prison. Do you understand that?
Q The State is reserving in the plea agreement the right to ask that the [c]court make your sentences consecutive, [fifteen] years on the armed robbery, and [fifteen] years on the carjacking, added together for a total of [thirty] years in prison?
A That wasn't the plea bargain.
Q Well, that's what it says here, sir.
A I thought I was going for --Q The State will argue for consecutive time, and you reserve the right on the day of your sentence to argue for concurrent time?
Q That the [c]court, on sentencing day, impose a [fifteen]-year sentence on the carjacking and a [fifteen]-year sentence on the armed robbery, and allow you to serve them concurrently?
Q So nobody's promised you one way or the other, and the [c]court has not given any indication, what the sentence will be, other than the fact that on each count it will not exceed [fifteen] years. Do you understand that?
A Yes, [Y]our Honor, I understand that.
Q So when you come to court on your sentencing day, you could get [fifteen] years, concurrent, which means the outside date is [fifteen] years; or, when you come to court you could get [thirty] years, or anything in between, [be]cause the [c]court's not bound by giving the [fifteen] years. The [c]court could ...