On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 04-11-2666, 04-11-2667, and 04-11-2681.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2012
Before Judges Graves and Guadagno.
Defendant Robert Stanton appeals from the August 6, 2010 Law Division order that denied his petition for post-conviction relief (PCR). In his petition, defendant asserted that trial counsel rendered ineffective assistance by failing to advise him of the consequences of an "open" guilty plea and that he would be sentenced to an extended term. Defendant's PCR petition also asserted that had he known he was eligible for an extended term he would not have entered a plea of guilty. We agree with the PCR judge, Richard W. English, that defendant was made fully aware of his sentencing exposure when he entered his guilty plea, and he received effective assistance of counsel. We affirm.
On November 10, 2004, a Monmouth County grand jury returned three indictments against defendant, each charging him with one count of second degree robbery. N.J.S.A. 2C:15-1. The third indictment also charged defendant with conspiracy to commit robbery. N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.
The State proceeded to try defendant on the first of the three indictments. After two days of trial before Hon. Francis P. DeStefano, and just before the State called its last witness, the defendant informed his trial counsel that he wished to enter guilty pleas to all three indictments. Counsel informed the judge that "the plea offer by the State is to plead to the other two indictments, 15 years NERA concurrent, and he would be pleading guilty open-ended to this matter." Judge DeStefano remarked, "I can't stop him from pleading guilty open-ended; that I can't do." Defendant responded affirmatively.
After defendant was sworn, he acknowledged his signature on the plea form and admitted he reviewed the form with his attorney. Judge DeStefano then cautioned defendant that if he had a "whimsical change of mind" and tried to retract the plea, the judge would not look favorably on that as the State's case was almost concluded. The judge then questioned defendant extensively on his understanding of the plea agreement:
[Y]ou are pleading guilty open-ended, meaning there's no plea bargain. You can get up to 10 years on that and the State can ask for an extended term because of your record, and it's up to me as to whether I'm going to grant that. You could get another 10 years on top of it or 20 years in state prison. Do you understand that?
Defendant answered "Yes" and acknowledged that he understood the sentence could be subject to the No Early Release Act. After the prosecutor confirmed that the State would be moving for an extended term of fifteen years, the judge questioned defendant and confirmed that he understood that possibility. Defendant then provided a factual basis for his guilty plea, admitting that on the three dates in question he*fn1 robbed three Monmouth County banks, obtaining cash each time.
On December 9, 2005, defendant appeared for sentencing and moved to withdraw his guilty plea. He claimed there was a missing videotape and if he had known of the videotape, "he would have wanted to view that before he entered a plea of guilty on the third one[.]" The prosecutor denied that there was any missing videotape. Judge DeStefano denied defendant's motion, finding that there was no basis to withdraw the plea. The judge then granted the State's motion for imposition of an extended term and sentenced defendant on the first robbery to twenty years incarceration with an eighty-five percent period of parole ineligibility. Concurrent ten year sentences were imposed on the other two robberies.
On October 16, 2006, defendant moved for a reduction of his sentence before our excessive sentencing panel. We affirmed the trial court, finding that the sentence was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. We also found that the trial court did not abuse its discretion in refusing to permit defendant to retract his guilty plea.
On January 31, 2007, our Supreme Court granted defendant's petition for certification, State v. Stanton, 189 N.J. 425 (2007), and remanded for resentencing in light of State v. Pierce, 188 N.J. 155 (2006). The remand was "limited solely to the sentencing issue raised by defendant."
On April 13, 2007, defendant appeared for resentencing. Judge DeStefano considered defendant's extensive record and determined that he met the definition of a persistent offender. The judge then weighed the aggravating and mitigating factors to ...