On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-12-2620.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Yannotti.
Defendant Vladimir Deryce was charged in count one of Atlantic County Indictment No. 04-12-2620 with the first-degree murder of Phillip Collins, N.J.S.A. 2C:11-3(a)(1) and (2), and, in count two, with the felony murder of Collins, N.J.S.A. 2C:11-3(a)(3). Darnell Hughes was charged as defendant's co-defendant in count two. On August 19, 2005, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), a lesser-included offense of count one. Pursuant to the plea bargain, the State was free to recommend a maximum sentence of thirty-years' imprisonment with a fifteen-year parole disqualifier.*fn1
Under oath, defendant told the judge that he was satisfied with his attorney's advice, understood the terms of the plea bargain and was voluntarily waiving his right to a trial and pleading guilty. Defendant further acknowledged his understanding of the plea forms and that he had answered all the questions truthfully. The plea forms indicated that defendant waived his right to appeal and agreed to testify against his co-defendant.
Defense counsel questioned defendant regarding the factual basis for the plea. Defendant admitted that he possessed a firearm, entered a cab with Hughes, and fired two shots in the direction of the cab driver's head from a distance of two to three feet.
Defendant was subsequently sentenced on October 14, 2005 in accordance with the plea agreement. He filed no direct appeal, but, on March 17, 2009, defendant filed a pro se petition for post-conviction relief (PCR). Defendant alleged his trial counsel provided ineffective assistance and his sentence was disparate to that imposed on Hughes.
PCR counsel was appointed and filed a supplemental verified petition and supporting brief. Defendant certified that the factual basis for his guilty plea was inadequate because he "never admitted that [he] unequivocally caused the death of the victim." He further claimed that trial counsel never advised that he could file a direct appeal. Defendant also contended that his "sentence was grossly excessive in comparison" to that imposed on Hughes.
The PCR hearing took place on August 11, 2010 before Judge Charles Middlesworth, Jr., who was not the trial judge. On January 11, 2011, Judge Middlesworth entered an order and written opinion denying defendant's PCR claims. The judge set forth the procedural history we have outlined above. He concluded that defendant's petition was procedurally-barred pursuant to Rule 3:22-4 because it "could have reasonably been brought on [defendant's] direct appeal" but none was filed.
Judge Middlesworth nevertheless considered the merits of defendant's petition.
The judge determined that defendant's allocution at the time he pled guilty "was sufficient to establish that the cab driver's death . . . was most certainly within the risk of which petitioner was aware when he fired two shots at the driver's head." He concluded any argument that the factual basis was inadequate was "meritless."
Judge Middlesworth then considered defendant's disparate sentence claim. On the same day defendant admitted his guilt, Hughes pled guilty to second-degree manslaughter, N.J.S.A. 2C:11-4(b), and was ultimately sentenced to seven years' ...