On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-12-1137.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2011
Before Judges Fuentes and Graves.
Defendant William Burden appeals from the order of the trial court denying his post conviction relief (PCR) petition.
On October 3, 2005, defendant pled guilty to third degree uttering a writing he knows to be false, N.J.S.A. 2C:21-1(a)(3) under Indictment 03-12-1137, and third degree burglary, N.J.S.A. 2C:18-2 under Indictment 03-12-1136. Pursuant to the plea agreement, the sentences imposed for these two offenses were to run concurrently. Aside from this, the court had discretion to sentence defendant to custodial terms within the range provided by the Criminal Code for these offenses. Defendant agreed to waive his right to appeal, and the State reserved the right to seek an extended custodial term.
The court sentenced defendant on December 9, 2005, to an extended term of ten years, with five years of parole ineligibility.*fn1 The court found defendant eligible for an extended term based on defendant's criminal history which included seven prior indictable convictions. Defendant appealed the sentence as excessive through the summary process available under Rule 2:9-11. We affirmed the sentence by order dated April 25, 2007. State v. Burden, No. A-0510-06 (App. Div. April 25, 2007).
On December 18, 2009, defendant filed this PCR petition pro se alleging ineffective assistance of counsel. The court thereafter assigned counsel to prosecute the petition. When the petition was heard by the trial court, PCR counsel argued that running the sentence imposed by the court in this case consecutive to the thirty-year term he was serving at the time from charges brought in Salem County "was a manifest injustice which serves no useful purpose."
PCR counsel further stated that the attorney who represented defendant in the plea negotiations and at the sentencing hearing "did not do an adequate job in representing him in regard that -- at least negotiating, . . . a stronger argument for concurrent terms versus consecutive terms." Although PCR counsel acknowledged that the reasonableness of the sentence "was already decided by the Appellate Division," defendant was raising this issue again in the context of the PCR petition because his trial counsel "performed an inadequate job  negotiating on his behalf."
The PCR court denied defendant's petition without an evidentiary hearing, finding that defendant had not established a prima facie case of ineffective assistance of counsel. The PCR judge reviewed the transcript of the plea hearing and noted that the court advised defendant directly that the sentence imposed for the crimes of burglary and uttering a false or forged instrument could run consecutive to the thirty-year custodial term defendant was serving at the time.
The PCR judge then concluded:
So it was clear that he was aware at the time the Plea was entered that the sentences to be imposed under the terms of the Plea Agreement he entered into in Cumberland County could be consecutive to the sentence that was imposed in Salem County. And he was also aware of his sentencing exposure, as much as 10 years in prison and as much as five years without parole.
The PCR judge rejected defendant's argument attacking the reasonableness of the sentence because that precise issue was addressed and rejected by this court in defendant's direct appeal. Against this record, ...