On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Kennedy.
Defendant Kendall Ferguson appeals from the order of the Law Division denying his application for post-conviction relief (PCR). We affirm.
On November 16, 2006, an Essex County Grand Jury returned an indictment charging defendant with purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1)(2) (count one); unlawful possession of a firearm, a "handgun", N.J.S.A. 2C:39-5(b) (count two); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). Pursuant to a plea bargain, on April 2, 2007, defendant retracted his initial plea of not guilty and pled guilty to count one, amended to aggravated manslaughter, N.J.S.A. 2C:11-4a, and count two, unlawful possession of a handgun. In exchange for the plea, the State agreed to amend count one, as noted, and recommended that any custodial sentence not exceed seventeen years, subject to an eighty-five percent parole ineligibility period and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On May 29, 2007, the court imposed a sentence of sixteen years, subject to a NERA period of parole ineligibility, on count one and five years on count two, to run concurrently. The State moved to dismiss count three and the court granted the motion.
Defendant appealed the sentence and claimed that it was excessive. We affirmed. State v. Ferguson, No. A-0883-07 (App. Div. Feb. 5, 2009). The Supreme Court denied certification. State v. Ferguson, 199 N.J. 515 (2009).
Defendant filed a pro se PCR petition in July 2009 and counsel was appointed to represent him. Defendant's PCR petition was premised on the argument that his trial counsel was ineffective. Defendant claimed that his first trial counsel, a public defender, had "offered [him] a plea of seven years with an eighty-five percent parole disqualifier which [he] verbally accepted." However, according to defendant, the following week a more senior public defender began to represent him and advised him that "the most he could do for [defendant] was to offer . . . twenty-two years with an eighty-five percent parole disqualifier which [he] rejected." Defendant claimed his new counsel told him to "forget" prior counsel's representations about a different plea bargain.
The judge who accepted defendant's plea and imposed sentence heard defendant's PCR application. The judge asked defendant's counsel if "any documentation, [such as] a plea offer form" confirmed defendant's understanding that he had been offered a plea bargain based upon seven years imprisonment, and counsel replied, "No. Just my client's argument."
The judge denied the application and explained that while "[t]here may have been a discussion as to what [plea offer counsel] thought he could get",
[t]he fact is that an offer was ultimately made which, pursuant to the rules of court, was reduced to writing. That offer insured that the defendant would not be convicted of first-degree murder, which would carry potentially a life sentence. The plea offer was reduced to writing. It was signed by Mr. Ferguson. That plea offer states that the State was recommending a sentence of seventeen years with eighty-five percent under the No Early Release Act.
I presided over this plea and I asked Mr. Ferguson several questions. I asked him, did he hear what the Prosecutor and his attorney . . . had to say about how the matter is being ...