On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-02-0310.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sapp-Peterson.
Defendant appeals the denial of his post-conviction relief (PCR) petition arising out of his conviction for one count of third-degree absconding from parole, N.J.S.A. 2C:29-5b, and one count of second-degree criminal attempt and eluding, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-2b. The conviction stemmed from a negotiated plea agreement in which the State agreed that in exchange for defendant's guilty plea to the absconding and eluding charges, it would dismiss the remaining counts in the twelve-count indictment returned against defendant and recommend a probationary sentence conditioned upon defendant's completion of a long-term inpatient drug rehabilitation program. The agreement also provided that any violation of probation would result in defendant serving nine years in New Jersey State Prison. The court sentenced defendant, in accordance with the agreement, to four years probation, conditioned upon defendant's completion of an eighteen to twenty-four month, inpatient drug rehabilitation program, as well as other conditions. In imposing the sentence, the court found, as aggravating factors, the nature and circumstances of the offense, the risk that defendant will commit another offense, the extent of his prior record, and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(1), (3), (6) and (9). The court found one mitigating factor, defendant's willingness to participate in a probationary program, namely, a long-term inpatient drug treatment program, N.J.S.A. 2C:44-1b(10).
On July 21, 2006, the court conducted a violation of probation hearing based upon the charge that defendant had been involuntarily discharged from two inpatient drug treatment programs and failed to report to his probation officer. Defendant pled guilty to the charges. The court noted the aggravating factors it had previously found, as well as the one mitigating factor it had also considered, and expressed that it had "no alternative but to impose the jail term that was provided for by contract under the plea agreement." The court sentenced defendant to a nine-year term in New Jersey State Prison on the eluding charge and to a concurrent four-year term on the absconding charge.
On February 28, 2008, defendant filed a pro se PCR petition. Eleven weeks later, defendant filed a motion seeking to directly appeal the sentence imposed. We denied the motion on the basis that the appeal was out of time. In September 2009, now being represented by counsel, defendant filed a supplemental brief in support of his PCR petition. Defendant was subsequently paroled on October 27, 2009.
In seeking PCR, defendant urged that his trial counsel failed to conduct an adequate pretrial investigation, which would have revealed that he was not competent to stand trial. In support of this contention, defendant submitted an expert report in which the expert opined that defendant was not competent to stand trial. Additionally, defendant contended that trial counsel advised that he had viable defenses that could be advanced in a suppression motion but that by pleading guilty, he effectively waived those defenses and therefore gave up his right to a trial by jury and the pretrial challenges.
In response, the State argued that the plea colloquy established that defendant had a clear recollection of the events giving rise to the charges against him and that the expert report is based upon an extrapolation analysis, which is essentially belied by the voir dire conducted of defendant at the plea hearing.
The PCR judge first found that defendant's claims were time-barred and that his claims that trial counsel was ineffective for failing to conduct a meaningful pretrial investigation and misled him about the consequences of his plea could have been raised on direct appeal. Additionally, the court concluded that defendant's claim that he is entitled to withdraw his guilty plea "is more properly raised by the filing of a motion to withdraw the previously entered guilty plea" before the trial court.
In addition to the procedural deficiencies in defendant's petition, the PCR judge found the merits of defendant's petition lacked a substantive basis for relief. Specifically, the court observed that trial counsel negotiated a twelve-count indictment down to guilty pleas on two counts and a probationary sentence. The court also noted that prior to entering his guilty pleas, defendant "was questioned at length as to his recollection of the incident" by his attorney and thereafter by the State. The court found that "defendant-petitioner's ability to recall the facts of the incident in detail directly undermines his contentions in his petition and his expert's report."
Likewise, the PCR judge concluded that the plea form, as well as the plea hearing transcript, demonstrate that defendant not only understood what the charges meant, but also that he was giving up his right to a jury trial in which the State would bear the burden of proving the charges against him, his attorney had not made any promises or representations beyond the plea agreement made to him, and that he was satisfied with the legal representation provided on his behalf. The judge then referenced portions of the plea hearing, including the trial court's extensive questioning of defendant regarding his background, education, and understanding of his right to a trial by jury. The trial judge then directed defendant to explain to the court the plea offer extended to him, to which defendant responded:
The offer is I'm going to a drug program which I've been accepted to and there's a bed waiting for an [eighteen]-month period. I can get up to five years probation[,] which is a stipulation . . . you put on me. That [eighteen] months to be in the program goes towards that five years max[imum] of ...