On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-01-0115.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Fisher and Baxter.
Defendant James M. Waters, Jr. appeals from a March 24, 2010 Law Division order that denied his petition for post-conviction relief (PCR). On appeal, he raises the following claims:
I. COUNSEL'S FAILURE TO CHALLENGE THE WARRANTLESS SEARCH BY WAY OF A MOTION TO SUPPRESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.
II. COUNSEL'S DECLARATION MADE AT SENTENCING THAT THE COURT WAS BOUND TO THE NEGOTIATED PLEA AND SUBSEQUENT FAILURE TO ARGUE FOR A LESSER SENTENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.
III. DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.
On September 27, 2005, Lakewood Township police officers effectuated a motor vehicle stop of the vehicle defendant was driving after they observed the vehicle stopped in the middle of the road, next to a parked car, thereby obstructing traffic and forcing other drivers to maneuver into oncoming traffic. Two females were in defendant's vehicle at the time it was stopped; one in the front passenger seat, and the other in the rear. Detective Humeny noticed defendant was attempting to hide an open container of beer behind his legs, and that the front seat passenger, Chariese Paden, was holding one in her hands. The rear seat passenger, later identified as Telisha Blyther, was observed sitting all the way forward on the edge of the seat with her knees pressed against the map-pouch on the back of the front passenger seat. When Detective Humeny asked Blyther for her age and date of birth, she provided a date of birth that was inconsistent with the age she reported to the officer. He then directed her to exit the vehicle. As she did so, Humeny observed a clear plastic bag protruding from the map-pouch, with several smaller transparent baggies in it, each containing marijuana.
At that time, all three of the vehicle's occupants were arrested. A search of the vehicle by another officer uncovered twenty-five additional bags of marijuana and a bag of crack cocaine located in the fuse access panel to the immediate left of the driver's seat, where defendant had been sitting. Upon searching defendant, the officers found a folding knife and $293 in his pockets.
An Ocean County grand jury returned an eight-count indictment charging defendant with one count of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); one count of second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1); two counts of third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; one count of fourth-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(12); one count of second-degree possession of a weapon while engaged in a drug distribution offense, N.J.S.A. 2C:39-4.1(c); and one count of fourth-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(a).*fn1
On July 17, 2006, defendant moved to suppress evidence of the cocaine and marijuana found during the motor vehicle stop. Although the hearing on defendant's motion was originally scheduled for August 21, 2006, it was adjourned on seven occasions, and was ultimately assigned a hearing date of March 30, 2007.
On that date, after extensive plea negotiations, defendant entered a negotiated plea of guilty to one count of second-degree possession of CDS with intent to distribute and one count of third-degree possession of CDS with intent to distribute within 1000 feet of a school. In return for defendant's guilty plea on those two counts, the State agreed to recommend a seven-year period of incarceration subject to a thirty-nine month period of parole ineligibility, and to dismiss the remaining counts. Notably, the terms of the plea agreement also required defendant to withdraw the motion to suppress that had been pending since July 2006. The following colloquy between the judge and defendant occurred concerning the withdrawal of defendant's motion to suppress:
Q: And in fact, as we stand here today we are scheduled to have a motion made by [your attorney] on your behalf, seeking to suppress the evidence that was seized on the day of this incident. You are aware of that?
Q: And by pleading guilty here today, you're giving up your right to have that motion and have the court make a decision whether the State can use the ...