On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-09-0750.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 10, 2011
Before Judges Axelrad and Ostrer.
Defendant, Boris Anevski, Jr., appeals from the Law Division's May 20, 2010 order denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant had alleged, in part, ineffective assistance of trial counsel in misrepresenting to him the sentence he would receive and in failing to articulate appropriate mitigating factors. We affirm.
The record reflects that on April 26, 2005, police responded to a Pathmark store in North Plainfield on a report of a stolen vehicle. Two women at the scene reported that their car had been forcibly taken, stating an individual, later identified as defendant, approached their car, opened the door, sat in the driver's seat, and proceeded to drive away. A struggle between the women and defendant ensued, during which defendant choked the front seat passenger and repeatedly struck the backseat passenger, ultimately pushing both from the moving vehicle.
Defendant fled the scene in the vehicle, making his way onto Route 22, traveling through North Plainfield, Watchung, Scotch Plains and into Mountainside, where the police pulled him over. Defendant then exited the vehicle and fled on foot before being apprehended by police.
Defendant was indicted by a Somerset County Grand Jury on two counts of first-degree carjacking, N.J.S.A. 2C:15-2a (counts one and two); second-degree eluding, N.J.S.A. 2C:29-2b (count three); third-degree receipt of stolen property, N.J.S.A. 2C:20-7 (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).
On June 9, 2006, defendant pled guilty before Judge Edward Coleman pursuant to a negotiated plea to all of the offenses in exchange for an aggregate custodial sentence of twelve years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. That agreement was contained in a plea form executed by defendant and confirmed in a detailed colloquy during defendant's plea hearing. Defendant acknowledged his knowing and voluntary decision to waive his right to a trial and to assert any possible defenses so he could take advantage of the plea offer. He represented he understood all of the terms and consequences of the negotiated plea and sentence, including the parole disqualifier. Defendant also expressly acknowledged the benefit he was receiving by the plea agreement as each of the carjacking counts carried a potential twenty-year prison term subject to NERA and the eluding offense carried a potential ten-year prison term. Defendant also informed the court that his attorney answered all of his questions and he had no questions of the court, he understood what he was doing, and he was not under the influence of anything that would affect his thinking. Defendant then provided a factual allocution for each of the offenses to which he pled guilty.
Counsel and the court had a discussion on the record about an expert
report that had been obtained by defendant's prior
counsel and addressed in a prior proceeding with defendant present.
The prosecutor represented that defendant was evaluated and a
conclusion was reached that defendant's condition was insufficient to
support a criminal responsibility-reducing psychiatric defense, such
as diminished capacity, legal insanity, or intoxication.*fn1
The court then expressly asked defendant whether he had "any
questions about any of this," to which defendant replied "no." The
court accepted the guilty plea as being knowingly and voluntarily
entered with an adequate factual basis for the offenses.
Defendant appeared before Judge Coleman for sentencing on December 8, 2006. Defendant addressed the court in a lengthy statement asking for leniency, and also requested the court sentence him to a charge that was one degree less pursuant to N.J.S.A. 2C:44-1. Judge Coleman found aggravating factors three, six and nine, N.J.S.A. 2C:44-1a(3), (6), (9), and no mitigating factors, N.J.S.A. 2C:44-1b. He sentenced defendant in accordance with the negotiated plea to an aggregate twelve- year custodial term subject to NERA by merging count four with count one and imposing concurrent twelve-year terms subject to NERA on both counts one and two, a concurrent seven-year term on count three, and a concurrent four-year term on count five. The court also imposed appropriate fines and penalties.
Defendant appealed, challenging only his sentence, which we affirmed on February 6, 2008 on an ESOA calendar. R. 2:9-11. On April 13, 2009, defendant filed a pro se motion to correct or vacate an illegal sentence. To the extent the motion sought a reduction in sentence, it was deemed time-barred; however, Judge Coleman converted the claims pertaining to ineffective assistance of counsel to a PCR petition. A supplemental brief was filed by counsel, and oral argument was conducted by Judge John Pursel on May 19, 2010.
By written opinion and order of May 20, 2010, the court denied defendant's motion. Judge Pursel summarized defendant's arguments as follows:
Defendant asserts that trial counsel was ineffective for several reasons. First, Defendant claims that he was advised that he would receive a sentence in the 2nd degree range, thus being closer to ten years as opposed to the twelve years he ultimately received. Next, defendant contends that it was ineffective when his attorney failed to place mitigating factors on the record and when he failed to ask for the sentencing judge to sentence defendant to one degree lower. ...