On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-10-1472.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2012 -
Before Judges Fuentes and Koblitz.
Defendant Brian Benedik appeals from an October 30, 2009 order, which denied his petition for post-conviction relief (PCR) on the grounds that it was time-barred under Rule 3:22- 12(a) and did not raise a prima facie claim of ineffective assistance of counsel. We affirm.
After previously confessing in detail to the Ocean County Prosecutor's Office, defendant entered a guilty plea on April 22, 2002, to two counts of aggravated sexual assault on an eleven-year-old boy who was in his care during 1999 and 2000.
The State initially agreed to a maximum sentence of ten years with no mandatory minimum. The sentencing judge rejected the plea agreement. Defendant subsequently agreed to reinstate his guilty plea with a maximum term of sixteen years with an eight- year term of parole ineligibility. Defendant also pled to an unrelated theft count of another indictment and was sentenced to a concurrent three-year custodial sentence and ordered to pay $18,023.53 in restitution. The custodial sentence of sixteen years with an eight-year mandatory minimum was entered on August 26, 2002.
Defendant appealed the sentence and we entered an order on March 31, 2004, remanding the matter for a restitution hearing, as well as to give defendant "the right to move, prior to May 7, 2004, to withdraw his plea of guilty pursuant to State v. Bellamy, 117 N.J. 127 (2003) (holding that fundamental fairness requires that the trial court, prior to accepting a plea to [a] predicate sexual offense, must ensure that the defendant understands that, as a result of his plea, there is a possibility of future commitment, and that such commitment may be for an indefinite period, up to and including lifetime commitment)." Defendant did not subsequently move to withdraw his plea.
He filed a PCR on January 30, 2009, more than six years after he was sentenced, alleging his trial counsel was ineffective and seeking not to vacate his guilty plea, but rather to obtain the originally-promised ten-year sentence. The judge found that defendant filed the PCR beyond the five-year time limit in Rule 3:22-12(a) and, even if the petition were not time-barred, it did not present a prima facie case of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984).
On appeal, defendant raises the following issues:
POINT I: DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED.
A. THE PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE DEEMED TIME-BARRED BECAUSE THE INTERESTS OF JUSTICE ...