On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0863.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2012
Before Judges Harris and Hoffman.
Defendant Ameer Bellinger appeals from the Law Division's October 15, 2010 order that denied post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Bellinger was the subject of an eight-count indictment relating to crimes allegedly committed in Pleasantville on December 13, 2006. Through defense counsel, a plea arrangement was negotiated, which called for Bellinger to plead guilty to a single charge of second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2). In exchange, the State agreed to recommend a seven-year term of imprisonment with forty-two months of parole ineligibility. The plea form signed by Bellinger on December 17, 2008, indicated that the sentence would run concurrent to a sentence he was already serving, and he was entitled to an unspecified "credit for all time served."
Bellinger had been initially arrested on December 13, 2006, and remained continuously incarcerated until the time of his plea allocution and sentence two years later. Most of that period of incarceration was due to Bellinger's separate sentencing on January 19, 2007, for crimes committed in Atlantic City on October 21, 2005.*fn1
At the plea allocution in this case, defense counsel repeated what was in the plea form:
Judge, my client is to receive credit for all time served. I place[d] that on [the plea form] because there is some -- there may be some issue with the credit as to the two cases and I just want to make sure that it's accurate. I know that Your Honor will give him credit for all time he is entitled to with this case.
Prior to taking a factual basis for the plea, the court stated directly to Bellinger, "I'll give you credit for all lawful jail credits that you're entitled to." There were no other discussions on the record at the plea allocution hearing concerning the nature or amount of credits that Bellinger would receive at the time of sentencing. No specific promises of any kind relating to credits appear in the record. In fact, although the proper calculation of credits was an important concern to Bellinger and defense counsel, the acknowledged uncertainty as to their allocation was known to Bellinger. There is no evidence that he had any reasonable expectations other than he would receive "all lawful jail credits."
Sentencing occurred on January 21, 2009. Before imposing sentence, defense counsel, the prosecutor, and the court engaged in a colloquy regarding the amount of jail credits that would be awarded to Bellinger. The court stated, among other things, "I want to see to it that Mr. Bellinger gets everything that he's entitled to and . . . I'll certainly order whatever it is that the [presentence report] writer has told me is appropriate." The court indicated that it would award "733 gap[-]time, [and thirty-seven] days straight jail credits on this indictment to run concurrent to the sentence he's presently serving, I'm just going to reach sentencing along those lines." In response, defense counsel stated: "Judge, I understand. My position is that that's accurate."
Notwithstanding that concession, the court advised Bellinger directly that if he remained dissatisfied with the credits after consulting with the New Jersey Parole Board, he could "make application to [the court], and [it would] consider that application when [it] see[s] it." Bellinger addressed the court thereafter, stating, "I'm satisfied with this plea being on the fact that when it came down to the jail credits is the reason why I took the plea." He further told the court, "I wasn't too keen on copping out to [three]-and-a-half years. That's the reason why the jail credit's such a big issue." Thereafter, the court imposed the agreed-upon sentence, allocated the credits by giving thirty-seven days of jail credit and 733 days of gap-time credit, and advised Bellinger of his right to appeal.
Bellinger elected not to file a direct appeal. Instead, he filed a
motion in the Law Division to convert the gap-time credits into jail
credits, claiming that the failure to do so rendered his sentence
illegal. The motion was denied on May 15, 2009. Bellinger filed a pro
se appeal from that order but failed to prosecute it beyond filing the
notice of ...