On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-08-1360.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Carchman.
Defendant Vonnie Smith entered a plea of guilty in 2002 to possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). He was thereafter sentenced to a term of probation. In April 2004, while on probation, he was arrested and subsequently entered a guilty plea to possession of CDS, N.J.S.A. 2C:35-10a(1). He was found guilty of violating his probation and was re-sentenced to a term of five-years imprisonment on the 2002 charge. The judge sentenced defendant to a concurrent five-year term for the 2004 offense. On appeal, we modified the probation violation sentence to four years. Among a series of post-judgment motions, in May 2008, defendant filed a petition for post-conviction relief (PCR). Judge DePascale, in the Law Division, denied the PCR. This appeal followed.
We need not recite the facts of the various offenses, as defendant's PCR claims focus on allegations of ineffective assistance of counsel in the negotiation of the plea agreement, as well as challenges to the sentence imposed. Specifically, defendant asserts on this appeal:
THE FAILURE OF TRIAL [COUNSEL] TO EXPLAIN TO DEFENDANT THAT HIS PLEA AGREEMENT WITH THE PROSECUTOR, THAT HIS SENTENCE WOULD RUN CONCURRENT TO A PREVIOUS SENTENCE IMPOSED FOR A VIOLATION OF PROBATION, DID NOT MEAN THE TWO SENTENCES WERE COTERMINOUS, CONSTITUTED INCOMPLETE LEGAL ADVICE, THUS DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN TO DEFENDANT THAT EVEN IF THE SENTENCING COURT IMPOSED CONCURRENT SENTENCES HIS SENTENCES WOULD NOT BE COTERMINOUS, RENDERED DEFENDANT'S PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY, WITH AN UNDERSTANDING OF THE CONSEQUENCES, WAIVED HIS RIGHT TO A JURY TRIAL (PARTIALLY RAISED BELOW).
THE PROCEDURAL BAR OF [RULE] 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF.
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN ...