On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0387.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Yannotti and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
An indictment was returned against defendant and three others that charged him with eight counts of drug offenses, including first-degree possession of heroin and cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(1)(count five), and second-degree possession of a firearm in the course of committing a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1 (count seven). Defendant entered into a plea agreement that provided for him to plead guilty to these two counts, amended to charge him with a second-degree and third-degree offense, respectively, and waive a hearing on the State's application to have him sentenced as a persistent offender. In return, the State agreed to recommend a sentence of twelve years with a five-year period of parole ineligibility on count five and a concurrent term of five years on count seven. Defendant provided an appropriate factual basis for the plea and was sentenced accordingly in December 2006. The parties do not reference any appeal from the conviction or sentence.
Defendant filed a pro se PCR petition in July 2008. In the brief submitted by counsel, it was alleged that he was denied effective assistance of counsel. When he appeared before the court on his PCR petition, defendant stated:
First of all, I would like to say . . . I never put in this application to try to get around my guilt or anything for that. But when I initially took the plea, basically I was confused and I was under the interpretation [sic] after me and [the prosecutor] talked that I was copping out to a second-degree charge. So when I copped, I felt like that was all I could get now.
Defendant stated he was guilty of a second-degree crime, expected to get a second-degree sentence, and did not expect to get an extended term. Defendant did not ask to withdraw his guilty plea. He candidly told the court that he was only asking to have his sentence reduced by two years to ten years with a five-year period of parole ineligibility. Defense counsel represented that defendant would become eligible for parole in May 2010.
The PCR court denied defendant's petition. In this appeal, defendant argues that the PCR court erred in denying his petition without conducting an evidentiary hearing to determine the merits of his claims. After carefully reviewing the record and briefs, we are satisfied that this argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
The plea form defendant signed stated unequivocally that he agreed to waive a hearing on his eligibility to be sentenced as a persistent offender and that the State would recommend an aggregate sentence of twelve years with a parole ineligibility period. The plea transcript also demonstrates that the judge conducted a scrupulous review of the charges against defendant, his exposure without a plea bargain, the fact that he was subject to a mandatory extended term based upon his prior conviction for possession of a controlled dangerous substance with intent, and that, as a result of the plea agreement, "the maximum custodial sentence that could be imposed would be 12 years in New Jersey State Prison, with a five-year period of parole ineligibility on Count 5; and 5 years New Jersey State Prison flat time concurrent to - - that 12 years." When asked if that was his understanding of the plea, defendant replied, "Yes, I understand."
As noted, defendant does not deny his guilt regarding the charges to which he pled guilty. His sole contention, that he expected to receive a sentence within the range of a second-degree offense, lacks any merit in light of the fact that he was unequivocally told and stated he understood that he was facing a twelve-year sentence with a parole ineligibility period. Accordingly, we are satisfied that he failed to present a prima facie case that he was entitled to relief under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and State v. Fritz, l05 N.J. 42, 52 (l987), and therefore was not entitled to an evidentiary hearing beyond that conducted at the time his PCR petition was considered by the court. See State v. Marshall, 148 N.J. 89, l58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).