On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-06-2229.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Fuentes and Koblitz.
Defendant appeals from the February 18, 2010 order denying his motion for post conviction relief (PCR) on the merits. Defendant was indicted in Essex County, Indictment No. 95-06- 2229, for two counts of carjacking, N.J.S.A. 2C:15-2 and 2C:2-6, and various other charges stemming from an April 18, 1995 armed carjacking of two people in Newark. On January 18, 1996, defendant was sentenced in federal court to 180 months in prison for an unrelated carjacking. After a hung jury, defendant pled guilty on June 3, 1996, to every count in Indictment 95-06-2229. Although the State made no plea agreement with defendant, the judge promised him a sentence of no more than fifteen years with a parole ineligibility of seven and one-half years to run concurrent to the federal sentence he was already serving. As defendant was unable to read, defense counsel read the plea form containing the judge's promise to defendant. The judge explained to defendant that if the sentence was any greater, defendant would have the right to withdraw his plea and proceed to a second trial. The judge imposed the maximum sentence under the agreement on June 21, 1996.
In spite of efforts by the sentencing judge and United States Attorney's Office, the federal sentencing judge recommended that defendant's federal sentence run consecutive to the state sentence. The Federal Bureau of Prisons complied with this recommendation. On April 14, 1999, defendant wrote a letter of complaint to the New Jersey sentencing judge, who responded on April 20, 1999, that he had imposed the agreed-upon sentence and defendant's "complaint is with the federal authorities." Defendant's subsequent federal appeals were denied. Allen v. Nash, CV-04-0449, February 8, 2006, Allen v. Nash, 266 F. App'x 779 (3d Cir.), cert. denied, 169 L.Ed. 319 (2007). Defendant filed a PCR on July 21, 2008, alleging his counsel was ineffective by not informing him that the judge's promise was not binding on the federal court or prison authorities. The PCR was denied on the merits.
In denying his PCR application, the trial judge noted that an evidentiary hearing was unnecessary because defendant's representations were accurate. The judge heard the application on the merits and determined that both he and defense counsel had done the best they could to effectuate the concurrent sentence imposed on defendant, but had been thwarted by the federal system. The judge indicated that he had no doubt defendant had already served his maximum New Jersey sentence, and thus no relief was available.
We agree with defendant that the violation of his plea agreement represents a manifest injustice and therefore grant the relief requested.
THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT HIS PLEA AGREEMENT WITH THE TRIAL COURT, THAT HIS STATE SENTENCE WOULD RUN CONCURRENT TO DEFENDANT'S FEDERAL SENTENCE, WAS NOT BINDING ON THE FEDERAL COURT AND/OR PRISON AUTHORITIES, CONSTITUTED ERRONEOUS AND INCORRECT LEGAL ADVISE, THUS DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THAT DEFENDANT COULD BE FORCED TO SERVE CONSECUTIVE SENTENCES BY THE FEDERAL COURT CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL. (PARTIALLY RAISED BELOW) POINT THREE THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
THE TIME BAR OF R. 3:22-12 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR ...