On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-11-1250.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2012
Before Judges Simonelli and Koblitz.
Defendant Handy Michel appeals from the order denying his petition for post-conviction relief (PCR) without a plenary hearing. He argues that his counsel was ineffective in not fully explaining the parameters of the plea agreement negotiated with the State. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On May 23, 2002, defendant, with the assistance of a court-appointed Spanish interpreter, pled guilty to eight counts of five different Passaic County Indictments. On Indictment No. 01-11-1250, relating to possession of cocaine on August 28, 2001 with four co-defendants, defendant entered a guilty plea to second-degree possession of more than one-half ounce with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2) and N.J.S.A. 2C:2-6 (count two); third-degree possession of cocaine with the intent to distribute within a school zone, N.J.S.A. 2C:35-7, -5(a) and N.J.S.A. 2C:2-6 (count three); and second-degree possession of cocaine with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1, -5(a) and N.J.S.A. 2C:2-6 (count four). On Indictment No. 01-12-1351, relating to possession of cocaine with two co-defendants on October 2, 2001, he pled guilty to third-degree possession with the intent to distribute within a school zone, N.J.S.A. 2C:35-7, -5(a) and N.J.S.A. 2C:2-6 (count three); and second-degree possession with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1, -5(a) and N.J.S.A. 2C:2-6 (count four). On Indictment No. 02-01-0062, relating to his sole possession of cocaine on September 21, 2001, he pled guilty to third-degree possession with the intent to distribute within a school zone, N.J.S.A. 2C:35-7 and -5(a) (count three). The other counts of these indictments were dismissed by the State. Defendant also pled guilty to two one-count indictments, Nos. 02-04-0529 and 02-05-0594, each charging fourth-degree contempt for violating a drug restraining order, N.J.S.A. 2C:29-9(a). Defendant was promised that he would not receive a sentence in excess of nine years in prison with a parole ineligibility of four years.
The plea form, signed by defendant*fn1 after he reviewed it with his attorney and a Spanish interpreter, indicated that he was "to cooperate with the State in the [p]rosecution of [the] co defendant[s.]" At the plea hearing, Judge Marilyn C. Clark repeated his sentence exposure and clarified that the plea agreement anticipated his cooperation. The prosecutor also made clear that the plea agreement factored in defendant's cooperation in testifying against his co-defendants at the plea hearing. The prosecutor indicated that defendant's additional cooperation could result in a further diminution of his sentence exposure. At the end of the plea hearing, defendant implicated his co-defendants in sworn testimony.
Through an interpreter, defendant stated that he was a citizen of the Dominican Republic, had been in the country legally for eight years and had completed the eleventh grade at Kennedy High School. He also stated that he "understood everything." Judge Clark advised defendant that "there is a strong likelihood that you [will] be deported after any prison sentence; do you understand that?" Defendant stated that he understood.
Defendant did not appear at the scheduled sentencing on September 27, 2002. On April 5, 2007, after being arrested on new charges, defendant was sentenced. He told the judge at the hearing:
The reason why I didn't come to court [in September 2002] was because I was fearing for my life. A co-defendant of mine was killed. And I was actually very scared and I started using drugs. I really was so far gone with myself I really didn't know what I was doing.
Defendant was sentenced pursuant to the plea agreement to an aggregate term of nine years in prison with a mandatory term of four years of parole ineligibility. He appealed the length of the sentence utilizing the Excessive Sentence Oral Argument program. We affirmed the sentence by order of August 18, 2009. Defendant then filed a timely petition for PCR.
On appeal defense counsel raises the following issues:
POINT I: THE FAILURE OF THE DEFENSE ATTORNEY TO COMMUNICATE, EXPLAIN, AND CONFIRM DEFENDANT'S UNDERSTANDING OF THE "NINE YEAR/FOUR YEAR PAROLE INELIGIBILITY" PLEA DEAL, QUALIFIES AS INEFFECIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ STANDARD, DENYING DEFENDANT THE BASIC SIXTH AMENDMENT RIGHT TO ADEQUATE COUNSEL, GROUNDED IN THE UNITED STATES AND THE NEW JERSEY CONSTITUTION, AND MATERIALLY EFFECTING THE PLEA DEAL, THE OUTCOME OF THE CASE, AND DEFENDANT'S RIGHT TO A TRIAL. POINT II: THE PLEA AGREEMENT (FORM AND TRANSCRIPT) MUST BE OVERTURNED AS DEFECTIVE, AS THE DEFENSE COUNSEL AT TRIAL, FAILED TO PERFECT A PROPER PLEA AGREEMENT. THE PLEA AGREEMENT:
(A) DID NOT DEFINE 'COOPERATION'; (B) THE PLEA AGREEMENT DID NOT CONTAIN A SENTENCING RANGE ...