On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-11-04566.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2012 -
Before Judges Ashrafi and Fasciale.
Defendant Alquan Gordon appeals from a September 20, 2010 order denying his petition for post-conviction relief (PCR). We reverse.
In 2001, defendant was indicted on charges of first-degree attempted murder, N.J.S.A. 2C:5-1, 11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The indictment arose from the December 2000 shooting of an acquaintance of defendant after a dispute in a bar. Defendant lured the victim to a place from which he retrieved a gun and then shot the victim in the back of the neck. After the shooting, defendant dragged the victim to a vacant lot and left him to die in the rain. The victim survived but was paralyzed. He died sometime after defendant's trial in 2003, although the cause of death is not revealed in our record, and we do not mean to suggest that death resulted from the shooting.
Defendant was tried in absentia and convicted on all charges in the indictment. At defendant's sentencing on August 1, 2003, the court merged the aggravated assault and the second-degree weapons charges with the attempted murder conviction and sentenced defendant to an extended term sentence, pursuant to N.J.S.A. 2C:44-3a, of fifty-five years imprisonment with seventeen years of parole ineligibility. A concurrent term of five years imprisonment was imposed on the other weapons charge.
We affirmed the conviction and sentence on direct appeal, State v. Dwight,*fn1 378 N.J. Super. 289 (App. Div. 2005), and the Supreme Court denied defendant's petition for certification, State v. Dwight, 185 N.J. 391 (2005). Defendant then filed a PCR petition on June 23, 2006, alleging ineffective assistance of counsel. An attorney was appointed to represent him for the PCR petition. The trial court held an evidentiary hearing on four dates over a two-year period on the issues raised in the PCR petition. Defendant and his court-appointed trial attorney testified on behalf of defendant. The State presented no witnesses.
Defendant testified that he would have accepted the prosecution's plea offer of ten years imprisonment if his trial attorney had not misinformed him about his exposure to an extended term sentence. He testified that he specifically asked his trial attorney during the time of plea negotiations whether he was subject to an extended term sentence and his attorney incorrectly told him that he was not.
His trial attorney confirmed that defendant had inquired and that he had given incorrect information to him about exposure to an extended term sentence. The error pertained to the discretionary extended term statute applicable to a persistent offender, N.J.S.A. 2C:44-3a. The statute permits the imposition of a longer term of imprisonment if a defendant stands convicted of a third-degree or more serious crime, was at least twenty-one years old at the time he committed the crime, had at least two prior indictable convictions after the age of eighteen committed at different times, and committed the crime for which the extended term is imposed within ten years of his last prior crime or release from custody. Ibid.
At the PCR hearing, defendant's trial attorney gave a detailed explanation of how the error occurred. In 2002, the attorney was receiving court-appointed assignments as a "pool" attorney working in conjunction with the Public Defender's Office. On November 4, 2002, he was substituted for the Public Defender's Office to represent defendant, whom he knew as Alquan Dwight. At the time of his appointment, at least two sets of charges were pending against defendant, the most immediate of which was the attempted murder indictment arising from the December 2000 shooting. The trial attorney reviewed defendant's file on that case and saw that he had one prior indictable conviction on his record, a 1996 conviction for third-degree receiving stolen property. Therefore, defendant was not subject to the persistent offender statute when the attorney initially began representing him. However, the attorney candidly admitted at the PCR hearing that he should have realized that defendant could become subject to the persistent offender statute upon his conviction on one of the other charges that were then pending against him.
At a scheduled pretrial conference pursuant to Rule 3:9-1(c), held on November 18, 2002, the trial attorney requested that the judge grant him more time to become familiar with the case and to discuss with defendant the prosecution's plea offer. The court granted the request, indicating that plea negotiations would not be cut off, in accordance with Rule 3:9-3(g), until Friday of that week, November 22, 2002. The court also discussed with defendant on the record his sentencing exposure on the attempted murder and related charges, stating that he faced up to thirty years in prison if he went to trial and was convicted.
At the time of the pretrial conference on November 18, 2002, the trial attorney had completed a pretrial memorandum form and discussed it with defendant. The pretrial memorandum contained a series of questions and answers, and information related to the charges. It stated that the maximum sentence defendant was facing was thirty years imprisonment with twenty-five-and-a-half years of parole ineligibility under the "85% Law" (the No Early Release Act, N.J.S.A. 2C:43-7.2). The memorandum also recited the terms of the prosecution's plea offer of ten years "w[ith] 85%" and asked whether defendant understood "that if you reject this plea offer, the Court could impose a more severe sentence than recommended by the plea offer, up to the maximum sentence permitted if you are convicted after trial?" The answer "yes" was circled. Also crucial for purposes of the PCR petition, the pretrial memorandum included the answer "no" to the question "Does the defendant qualify for an extended term?" Defendant initialed each page of the pretrial memorandum and signed the last page.
On November 22, 2002, defendant appeared in court, but his attorney was not present. The court adjourned the plea ...