On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 95-09-1004, 95-09-1008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2012
Before Judges Parrillo and Sabatino.
Defendant, Timothy Murphy, appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and a lesser-included disorderly persons offense on count four. On the same day, he was also found guilty of the fourth-degree offense of certain persons not to have weapons, N.J.S.A. 2C:39-7, for which he had been separately indicted.
After granting the State's motion for a discretionary extended term, N.J.S.A. 2C:43-7, and having merged count three with count one, the judge sentenced defendant to a fifty-year prison term, with a twenty-year period of parole ineligibility. Defendant also received eighteen-month prison terms, each with a seven-month parole ineligibility period, on count two and the certain persons offense, made to run concurrent with each other and the sentence on count one.
Defendant appealed and we affirmed. State v. Murphy, No. A-2573-98 (App. Div. Jan. 20, 2000). The Supreme Court denied defendant's petition for certification. State v. Murphy, 164 N.J. 560 (2000).
Defendant filed a timely PCR petition in which he alleged that his successive trial attorneys were ineffective for failing to advise him of his "extended term" eligibility and its potential penal consequences. According to defendant, when he inquired as to his sentencing exposure if convicted, counsel informed him that "the most you could get is a twenty [year sentence] with a ten [year period of parole ineligibility], but the judge would probably only give you an eighteen [year term] with a nine [year parole disqualifier]." Had he known of his extended term eligibility, defendant claims he would have accepted the State's plea offer of an aggregate eighteen-year term with a minimum parole ineligibility period of six years. In support of his petition, defendant relies upon his PCR counsel's certification in which he reports from conversations with them that neither trial counsel remembers, either way, whether he advised defendant of his extended term exposure, although one of them stated he "must have" discussed the possibility of an extended term with defendant.
The PCR judge denied defendant's petition in a letter opinion of September 24, 2008. Noting at the outset that defendant had failed to submit a transcript of either his arraignment or pre-trial conference, the court relied on the record of the October 11, 1995 plea offer, which specifically refers to "waive extended term":
In this case, the defendant's assertions are speculative. The record indicates that a written plea offer with specific references to an extended term was given to the defendant's counsel. The record further indicates that trial counsel apparently does not recall specifically discussing extended term, but believes he must have done so. The fact that the written plea offer makes a specific reference to an extended term supports that conclusion. Counsel's post-conviction letter about the extended term motion does not at all indicate that no prior discussions about extended term took place.
On the record placed before the court by the defendant, the court cannot conclude the defendant has met his burden to establish a prima facie showing that counsel's performance was deficient. There is insufficient evidence of ineffective assistance and thus, petitioner is not entitled to post-conviction relief.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ...