On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-11-1018.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and J. N. Harris.
Defendant Darren Richardson appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.
On November 18, 2002, defendant entered into a negotiated agreement with the State and pled guilty to an accusation filed by the Passaic County Prosecutor's Office charging him with third degree possession of PCP with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Prior to pleading guilty on this charge, defendant had pled guilty to an unrelated charge of third degree receiving stolen property, N.J.S.A. 2C:20-7, and was awaiting a sentence of probation conditioned upon serving 364 days in the county jail. He also had open charges of third degree possession of CDS, N.J.S.A. 2C:35-5(a)(1), filed in Passaic County; and second degree robbery, N.J.S.A. 2C:15-1, filed in Bergen County.
Pursuant to the plea agreement in Passaic County, the State agreed to recommend an aggregate sentence of four years with fourteen months of parole ineligibility to run concurrent with the sentences imposed on the other three charges. Notwithstanding this agreement with the State, and due in large part to his attorney's advocacy, the trial judge agreed to limit the aggregate sentence to a maximum of three years, with fourteen months of parole ineligibility, to run concurrent with a sentence defendant was serving at the time.
Due to the complexity of these negotiations, the plea hearing was continued the following day, November 19, 2002.
Defendant testified at the plea hearing that, at the time he was arrested in his car, he possessed PCP; he knew it was an illegal substance; and he intended to distribute it, either by sharing it or selling it to others, within 1000 feet of an elementary school. The court sentenced defendant, on January 31, 2003, to an aggregate term of three years, with fourteen months of parole ineligibility, and imposed the mandatory fines and penalties. As indicated earlier, the judge directed that this sentence run concurrent to a sentence defendant was serving at the time.
Defendant did not file a direct appeal challenging either the plea or the sentence. Instead, on December 27, 2007, defendant filed a PCR petition claiming ineffective assistance of counsel. Specifically, defendant claimed that his assigned counsel did not visit him while he was detained awaiting trial and did not properly investigate the evidence against him.
Defendant was assigned counsel and his PCR petition came for adjudication before the court on October 16, 2009. After considering the arguments of counsel, Judge Miguel De La Carrera denied the petition. He explained his ruling in a memorandum of opinion dated May 7, 2010.
Defendant now appeals raising the following argument.
THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON THE DEFENDANT'S ATTORNEY'S FAILURE TO INVESTIGATE, FAILURE TO ...