On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-10-3333.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012 -
Before Judges Messano and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
A Camden County grand jury returned a one-count indictment in 1999 that charged defendant with the unlawful possession of "a controlled dangerous substance, namely; glucophage*fn1 and/or cocaine[.]" Defendant pled guilty to this count pursuant to a plea agreement in which the prosecutor agreed to recommend a sentence of one year's probation with no condition of custody and to recommend that defendant be released on his own recognizance. Defendant agreed to waive his right to appeal.
In providing a factual basis for his guilty plea, defendant acknowledged possession of glucophage without a prescription. The prosecutor then stated that defendant also had a crack pipe that had a trace amount of cocaine. The court asked defendant if that was true and he replied, "Yes." When asked if he was guilty of "this offense[,]" defendant again stated, "Yes."
On February 2, 2001, defendant was sentenced to one year's probation and appropriate fines and penalties pursuant to the plea agreement. Defendant violated the conditions of his probation within two weeks, admitting to cocaine use at a scheduled office visit on February 13, 2001 and additional times thereafter, failing to remain arrest-free and failing to comply with other conditions of probation. A petition for violation of probation was filed against him on April 20, 2001. Defendant pled guilty to violating probation and was sentenced to four years' imprisonment on February 15, 2002. The court explicitly advised defendant of his right to appeal. However, defendant did not file a direct appeal from his conviction and sentence.
Defendant filed a PCR petition on April 9, 2009. In his petition and in the brief submitted on his behalf, it was argued that defendant was denied the effective assistance of counsel because his counsel advised him to plead guilty to something that was not illegal. He argues that, because he pled guilty to something that was not a crime under N.J.S.A. 2C:35-10(a)(1), the factual basis he provided was inadequate and his sentence was illegal.
The PCR court heard argument on the petition and denied defendant's petition on July 19, 2010, setting forth its reasons in a written decision.
Defendant presents the following issues for our consideration in his appeal:
SINCE THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ESTABLISHED A VIOLATION OF THE DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS; SINCE THE DEFENDANT WAS UNABLE TO FILE A DIRECT APPEAL AS A CONDITION OF THE PLEA; AND SINCE THE SENTENCE IMPOSED WAS ILLEGAL; THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING THE ...