On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0288.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Simonelli.
Defendant Anthony James appeals from the July 24, 2009 order, which denied his petition for post-conviction relief. (PCR). We conclude that the trial judge properly denied the petition, and affirm.
A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2); first-degree robbery, N.J.S.A. 2C:15-1; first-degree felony murder, N.J.S.A. 2C:11-3a(3); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Defendant pled guilty to the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. At the plea hearing, he admitted that he and his co-defendant intended to rob the victim, and he acted as a lookout while his co-defendant beat the victim to death with a rock. He also admitted that he entered the plea voluntarily, no force was used or threats were made, he was satisfied with trial counsel's representation, counsel had explained everything to him, he understood the plea forms, and he had no questions.
Defendant appeared for sentencing before Judge Joseph Donohue. It appears from the record that defendant advised trial counsel for the first time that he wanted to withdraw his guilty plea because he "did not read line by line his discovery." Judge Donohue denied counsel's oral request to withdraw the plea, concluding that no written motion had been filed, and defendant failed to establish a reason for withdrawal, confessed to his involvement in the crimes, and admitted his guilt at the plea hearing.
The judge afforded defendant an opportunity to speak before imposing sentence. When defendant spoke, he did not claim innocence; rather, he again admitted his involvement in the crimes, and apologized for his actions. In accordance with the plea agreement, the judge sentenced defendant to a fourteen-year term of imprisonment, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision upon release. Defendant appealed his sentence. We heard the appeal on our Excessive Sentencing Oral Argument calendar, and affirmed. State v. James, No. A-1106-06 (App. Div. Aug. 19, 2008).
Defendant filed a PCR petition, arguing that the judge erred in denying his request to withdraw his guilty plea without affording him the opportunity to file a written motion; trial counsel rendered ineffective assistance by failing to file a written motion to withdraw the guilty plea; and appellate counsel rendered ineffective assistance by only appealing his sentence. Defendant also argued that trial counsel had a conflict of interest because another attorney from the Public Defender's Office represented his co-defendant during plea negotiations, and trial counsel failed to adequately explain the five-year period of parole supervision.
In an oral opinion denying the petition, Judge Donohue found that at the plea hearing, defendant gave a sufficient factual basis for the plea, he made the plea knowingly and voluntarily, and he reviewed, understood, initialed, and signed the plea forms, which advised him that NERA and a five-year period of parole supervision applied to his sentence. The judge found that at sentencing, defendant did not claim innocence; rather, he apologized for his actions. The judge emphasized that defendant had never explained why he was innocent, and that defendant's confession could have led to a murder conviction. The judge concluded that defendant would not have prevailed on a motion to withdraw his plea, and thus, he failed to make a prima facie showing that trial and/or appellate counsel rendered ineffective assistance. The judge also concluded that there was no conflict of interest because the co-defendant had also pled guilty. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I THE COURT COMMITTED ERROR AND DENIED DEFENDANT H[I]S FUNDAMENTAL RIGHT TO A FAIR PROCEEDING WHEN IT DENIED DEFENDANT'S PRO SE MOTION TO VACATE HIS GUILTY PLEA PRIOR TO SENTENCE.
POINT II DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM BY THE ...