On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 05-11-0731.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2011 - Decided Before Judges Fisher and Baxter.
Defendant Shawn E. Foye appeals from a March 31, 2010 Law Division order that denied his petition for post-conviction relief (PCR). On appeal, he raises the following claim:
I. THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT'S SENTENCING COUNSEL FAILED TO MAKE ANY ARGUMENT ABOUT THE HUGE DISPARITY BETWEEN THE DEFENDANT'S AND CO-DEFENDANT'S SENTENCE AND THIS FAILURE DEPRIVED THE DEFENDANT OF A FAIR SENTENCING HEARING AND LED THE COURT TO IMPOSE A SHOCKING AND UNREASONABLE SENTENCE.
On November 15, 2005, a Cape May County grand jury returned a twelve-count indictment against defendant and co-defendant, Khalil McMichaels, charging them with second-degree burglary, conspiracy to commit burglary, first-degree robbery, conspiracy to commit robbery, possession of a handgun for an unlawful purpose, unlawful possession of a weapon, five counts of first-degree kidnapping, and one count of third-degree endangering the welfare of a child. The thirteenth count of the indictment pertained only to defendant, and charged him with fourth-degree certain persons not to possess weapons. A third individual, Antoinette Johnson, was charged with only two of the counts in the indictment, conspiracy to commit burglary and conspiracy to commit robbery.
The testimony presented to the grand jury established that Johnson owed defendant approximately $225 as a result of prior narcotics transactions. To satisfy the debt, she arranged for defendant to burglarize her cousin's home on Townbank Road in Lower Township. While visiting her cousin's home on August 25, 2005, Johnson deliberately left the back door unlocked when she departed, so that defendant could gain entry. She did not know defendant would be armed or that he would conceal his identity with a ski mask when he entered the home. Defendant, accompanied by McMichaels, entered the home armed with a handgun, and proceeded to apply duct tape to the residents' hands and ankles while pointing a gun at them. Before leaving, defendant and McMichaels stole money from a safe in a bedroom.
In December 2005, Johnson pled guilty to one count of conspiracy to commit robbery and agreed to testify against defendant and McMichaels. On March 24, 2006, pursuant to her plea agreement, Johnson was sentenced to a five-year term of imprisonment.
At approximately the same time, on February 24, 2006, defendant pled guilty to one count of first-degree robbery and agreed to testify against McMichaels. In return, the State agreed to recommend a sentence of ten years imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA). The remaining charges would be dismissed. Defendant's sentencing was held in abeyance, as McMichaels's trial had not begun, and defendant was only entitled to the benefit of the plea agreement if he testified truthfully against McMichaels at trial.
On May 22, 2006, when defendant failed to appear for a hearing,*fn1 the judge issued a bench warrant and ordered that defendant's bail be revoked and forfeited. In November 2006, the State moved to withdraw from its earlier plea agreement with defendant. The judge granted that motion.
On the same day the judge granted the State's motion to withdraw from its plea agreement with defendant, the State negotiated a plea agreement with McMichaels. Pursuant to that agreement, McMichaels pled guilty to one count of fourth-degree hindering apprehension, subject to an agreement that McMichaels testify against defendant at defendant's upcoming trial. McMichaels was eventually sentenced on June 29, 2007, to 448 days in prison, but because he had already served 448 days in custody, he was released on the day of sentencing.
On December 6, 2006, a few weeks after McMichaels entered his plea of guilty, defendant reconsidered his earlier decision to go to trial, and agreed to accept a revised plea agreement, which, like the earlier agreement, allowed him to plead guilty to one count of first-degree robbery; however, the State was no longer willing to offer him a ten-year NERA term. Because both Johnson and McMichaels had already pled guilty and the State no longer needed defendant's cooperation, the State was unwilling to offer defendant the same favorable plea agreement it had offered in February 2006. Instead, the State offered defendant a fifteen-year NERA term, accompanied by the dismissal of the remaining counts of the indictment. ...