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State of New Jersey v. Michael Armstrong

December 8, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL ARMSTRONG, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-05-0659.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 27, 2011

Before Judges Yannotti and Espinosa.

Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.

On December 2, 2002, defendant pled guilty to one count of first-degree carjacking, N.J.S.A. 2C:15-2(a)(1), pursuant to a plea agreement in which five other counts of an indictment returned against him were dismissed. The plea form reflected that the prosecutor had agreed to recommend a "custodial sentence not to exceed 18 [years] state prison with an 85% parole disqualifier." The form also included a supplemental plea form in which defendant acknowledged that he was subject to a mandatory five-year term of parole supervision upon release. However, during questioning of defendant in the plea proceeding, defendant's attorney recounted that he had "conferenced the case with the court and the court indicated that if all things are [as] outlined to the court that the court would consider a 15 year sentence of which [defendant would] have to serve 85 percent." Defendant agreed that was his understanding of the plea bargain.

Prior to his sentencing, he filed a motion to withdraw his guilty plea. His motion was denied on June 20, 2003. Defendant was sentenced to fifteen years with an 85% parole disqualification and five years parole supervision upon release.

Defendant filed a notice of appeal and subsequently withdrew his appeal. In January 2007, he filed a pro se PCR petition in which he alleged he was denied the effective assistance of counsel and should be permitted to withdraw his guilty plea. He was assigned counsel and a hearing was conducted regarding his claim. The PCR judge denied his petition in December 2009. In this appeal, defendant presents the following issues for our consideration:

POINT I

DEFENDANT RECEIVED INEFFECTIVE REPRESENTATION FROM TRIAL COUNSEL WHO MISADVISED DEFENDANT CONCERNING HIS SENTENCING EXPOSURE

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL

We are not persuaded by either of these arguments*fn1 and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

In Point I, defendant argues that his trial counsel was ineffective because "he was induced to plead guilty when his lawyer said that, if he rejected the judge's fifteen year offer, he would get thirty years." As reflected on the plea form, the maximum exposure for the first-degree carjacking offense to which defendant pled guilty was thirty years. Defendant's trial attorney testified at the evidentiary hearing that he reviewed with him the fact he could receive a thirty-year sentence as well as the strength of the State's case. It is ...


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