On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-05-0507.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2012
Before Judges Axelrad and Haas.
Defendant Zaki Jones appeals from a December 17, 2009 order denying his petition for post-conviction relief (PCR). We affirm.
Pursuant to a plea agreement reached with the input of the trial judge pursuant to Rule 3:9-3(c), defendant pled guilty to third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree attempted theft, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3; fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1); third-degree burglary, N.J.S.A. 2C:18-2; second-degree eluding, N.J.S.A. 2C:29-2b; second-degree aggravated assault, N.J.S.A. 2C:12-1b(6); and first-degree carjacking, N.J.S.A. 2C:15-2. He was sentenced to an aggregate term of fourteen-years imprisonment, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant filed an excessive sentence appeal and we affirmed the sentence imposed. State v. Jones, No. A-1207-05 (App. Div. Oct. 16, 2006). The Supreme Court denied certification. State v. Jones, 190 N.J. 255 (2007).
In 2008, defendant filed a PCR petition. He alleged that his trial attorney did not visit him at the jail or adequately discuss the case with him. Defendant also alleged his attorney incorrectly advised him that the 350 days of gap time credit he received at the time of sentencing would be applied to reduce the NERA portion of his sentence.
Judge James C. Heimlich, who was also the trial judge, conducted an evidentiary hearing on defendant's claims. Defendant testified his attorney had not met with him until shortly before he agreed to plead guilty. He also alleged the attorney advised him that his gap time credit would reduce the minimum period of parole ineligibility imposed under NERA. Defendant claimed he would not have pled guilty if he had known the gap time credit would not reduce the NERA portion of his sentence. Defendant's trial attorney testified he did not recall representing defendant or any of the circumstances of his case.
In a thorough oral opinion, Judge Heimlich found defendant's claims were not credible. At the time of the plea, defendant testified he was satisfied with the performance of his counsel and that all his questions had been answered. The judge also found the plea form clearly indicated that the minimum period of parole ineligibility was eleven years, nine months, which is 85% of defendant's fourteen-year aggregate sentence. The plea form also states that "this period cannot be reduced by good time, work, or minimum custody credits." Therefore, the judge denied defendant's petition for PCR. This appeal followed.
On appeal, defendant generally argues that the judge erred in denying his PCR petition. Our review of the record, however, convinces us that the judge acted properly in denying defendant's petition for PCR. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add these brief comments.
To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) ...