On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment Nos. 01-12-0443 and 01-12-0444.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Yannotti.
Defendant Frank M. DelVecchio, Jr., appeals from an order entered by the Law Division on July 15, 2009, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged in Sussex County Indictment No. 01-12-0443, with first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). He was also charged in Sussex County Indictment No. 01-12-0444, with three counts of third-degree burglary, N.J.S.A. 2C:18-2; three counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); and three counts of fourth-degree criminal mischief, N.J.S.A. 2C:17-3.
Defendant pled guilty to first-degree robbery, as charged in Indictment No. 01-12-0443. He also pled guilty to three counts of third-degree burglary and three counts of third-degree theft by unlawful taking, as charged in Indictment No. 01-12-0444. The plea agreement stated that the prosecution would remain silent on the issue of concurrent/consecutive sentences as to all charges in the Sussex County charges, but reserved the right to seek imposition of sentences consecutive to the sentences that defendant was then serving arising from charges in another county. The prosecution did not recommend any particular sentence at the sentencing, but argued that the Sussex County sentences should be consecutive to those imposed on charges in other counties.
For the robbery, the court sentenced defendant to an aggregate term of fifteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2, to be served consecutive to the sentence that defendant was then serving. The court also sentenced defendant to four years of incarceration, with a two-year period of parole ineligibility, on one of the burglary counts, to be served consecutively to the sentence imposed for the robbery. Concurrent sentences were imposed for the other burglaries and thefts.
Defendant challenged his sentences by filing a notice of appeal from the judgment of conviction dated November 29, 2004, and the case was heard on our excessive sentencing calendar. We affirmed the sentences imposed. State v. DelVecchio, No. A-1198-05 (App. Div. July 25, 2007).
On November 8, 2007, defendant filed a pro se PCR petition, in which he alleged that he had been denied the effective assistance of counsel. Among other things, he alleged that his attorney, Pierce Butler (Butler), had advised him that he would receive concurrent sentences, and would receive no more than a twelve-year sentence in state prison.
On July 8, 2009, the PCR court conducted an evidentiary hearing on defendant's petition, at which defendant and Butler testified. Defendant stated that the plea agreement "never gave an exact amount of years" to which he would be sentenced but Butler told him he "was going to be looking at around [twelve] years." Defendant said that Butler told him "everything was going to be r[un] concurrent."
Butler testified, however, he never told defendant his actual exposure was only for concurrent sentencing. He also said that he did not tell defendant he was only going to receive a sentence of between twelve and fifteen years. Butler additionally stated he reviewed the plea agreement form with defendant, and defendant indicated he understood the plea form as written.
After hearing the testimony, the PCR court placed its decision on the record. The court found that Butler's testimony was credible, while there was an "absence of evidence" to support defendant's testimony. The court noted that the transcript of the plea hearing indicated that defendant knew what the plea agreement was and that "[t]here were no promises made by Mr. Butler[.]"
The court additionally stated that the colloquy between the court and defendant at the plea hearing and Butler's testimony indicated that Butler never made any promises to defendant about the number of years defendant would be sentenced to serve, or whether the court would order that the sentences would run concurrently or consecutively.
The court concluded that defendant failed to carry his burden of showing that he had been denied the effective assistance of counsel. The court entered an order dated July ...