On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-10-1619.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2011
Before Judges Fisher and Baxter.
Defendant appeals the denial of his post-conviction relief (PCR) petition, which asserted he was denied the effective assistance of counsel when he pleaded guilty to kidnapping, aggravated sexual assault, and burglary, and was sentenced to a lengthy prison term. Defendant argues, among other things, that his trial counsel misled or coerced him into pleading guilty by "assuring him" the judge "would show leniency" and impose a lesser sentence in light of his age and remorse. We find no merit in any of defendant's arguments and affirm.
The record reveals that defendant was indicted and charged with: two counts of first-degree kidnapping, N.J.S.A. 2C:13- 1(b); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of first-degree robbery and one count of second-degree robbery, N.J.S.A. 2C:15-1; one count of second-degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a) and N.J.S.A. 2C:5-1; one count of second-degree burglary, N.J.S.A. 2C:18-2; and one count of third-degree theft, N.J.S.A. 2C:20-3. Prior to trial, defendant moved to be permitted to undergo a competency evaluation. Although the judge denied that motion, he did not foreclose defendant's right "to have a separate and independent psychiatric evaluation performed at his expense" by an expert of his own choosing. Defendant later entered into a plea agreement, which exposed him to an aggregate sentence not to exceed forty years. In response to a thorough and searching inquiry during the plea hearing on November 1, 2007, defendant acknowledged that he understood the terms of the plea agreement and his potential penal exposure, and that he entered into the plea agreement freely and voluntarily. In providing a factual basis for his guilty plea to the first-degree kidnapping and the first-degree aggravated sexual assault that occurred in Lakewood on May 7, 2006, defendant admitted he grabbed the female victim, "shoved" her into his vehicle, drove to an isolated location ten miles from the abduction, brandished a pair of scissors, which he used to cut off the victim's shirt, and raped her anally, vaginally and orally. Defendant also acknowledged that he committed a burglary in Old Bridge on July 18, 2006.
The judge imposed consecutive terms on the three counts to which defendant pleaded guilty, aggregating in a prison term of forty years with an eighty-five percent period of parole ineligibility. Defendant appealed, arguing only that the sentence was excessive. We affirmed the judgment of conviction, State v. Fritz, No. A-4425-07 (App. Div. Jan. 8, 2009), and defendant's subsequent petition for certification was denied, 199 N.J. 541 (2009).
Defendant filed a pro se PCR petition on September 29, 2009. His sworn statement asserted he was "denied the effective assistance of counsel during plea negotiations, during sentencing, and on direct appeal"; the PCR petition did not provide any details in support of that general assertion.
Defendant's appointed counsel later filed a brief, arguing that defendant had authorized trial counsel to negotiate with the State and the [c]court that in exchange for [his] guilty plea to three counts of the indictment, [defendant] would be sentenced to concurrent terms, amounting to 27 years in prison subject to NERA (23 year minimum). As reflected in the sentencing minutes, trial counsel, in fact, addressed this proposed sentencing agreement on the record. In spite of the proposal, the trial court sentenced [defendant] to three consecutive terms of imprisonment, a total of 40 years subject to NERA (34 year minimum).
Defendant further argued that his trial counsel had misled and coerced him into pleading guilty by assuring him that he would receive the negotiated 27 year sentence. [Defendant] contends that he was persuaded by counsel that given his background, his remorse, and the support of the community, the [c]court, based on the established law in New Jersey, would show leniency. [Defendant] was only 22 years old, and had never been exposed to the legal system. He was naive, scared, and relied almost entirely on the advice of trial counsel. As a result, [defendant] went along with the plea negotiations and was shocked, dismayed and disappointed when he, in fact, received a 40 year sentence with 85 percent parole ineligibility, as opposed to the 27 years he anticipated.
Defendant did not provide a sworn statement to support these contentions.
Defendant also argued in the trial court that his appellate counsel was ineffective for failing to raise in his direct appeal that the guilty plea was not knowing, voluntary or intelligent.
A different judge heard and denied the PCR petition by way of an oral decision rendered on May 12, 2010. That ruling was ...