On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-07-0584.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2011
Before Judges Graves and Harris.
Defendant Israel Martinez appeals from an order dated June 22, 2010, denying his petition for post-conviction relief (PCR). For the reasons that follow, we reverse and remand for an evidentiary hearing.
On November 17, 2008, Martinez pled guilty to first-degree employing a juvenile in the commission of a crime in violation of N.J.S.A. 2C:24-9.*fn1 In return for the plea, the State agreed to dismiss other charges and to recommend a twelve-year prison term without any period of parole ineligibility. However, the court indicated it would not impose more than a ten-year term.
The same attorney who negotiated the plea represented defendant when he was sentenced, but a different attorney represented defendant when he entered his plea. At sentencing, defense counsel advised the court that she had spoken with the prosecuting attorney regarding a joint motion for reconsideration of defendant's sentence:
[DEFENSE COUNSEL]: The plea offer calls for [defendant] to receive a 10-year State Prison sentence with no parole stip. Just so that the defendant is clear and it's . . . on the record, we are going to sentence him today to the 10 flat, but it's in anticipation of a joint motion for reconsideration of sentence at a later date, if it's acceptable to the State, basically.
THE COURT: [Prosecutor], is that true?
[PROSECUTOR]: This case continues to be investigated. Should circumstances change, the State will join with [defense counsel] in a motion to reconsider.
THE COURT: Is that to address the mental health issue?
THE COURT: Okay. [PROSECUTOR]: There are other circumstances involved here that we prefer ...