On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-03-0276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2012
Before Judges Messano and Lihotz.
Defendant Jerome Smith appeals from the March 8, 2011 order denying his petition for post-conviction relief (PCR). Defendant had entered a guilty plea based on an agreement he plead to third-degree theft by deception, N.J.S.A. 2C:20-4a and the State agreed to dismiss the remaining charges. The trial judge stated her intention to impose a one-year probationary sentence conditioned on defendant serving 180 days in the county jail, at which time probation would end and defendant would pay restitution. See R. 3:9-3(c) ("The court may . . . indicate the maximum sentence it would impose in the event the defendant enters a plea of guilty[.]"). Further, the judge noted this sentence would run consecutively to a sentence defendant was serving in Pennsylvania. At sentencing, the court imposed this sentence along with applicable penalties and assessments.
On appeal, defendant argues:
THE FAILURE OF TRIAL COUNSEL TO ACCEPT A PLEA BARGAIN THAT DID NOT CALL FOR CONCURRENT SENTENCES OR THE AWARD OF DISCRETIONARY CREDITS AND THE FAILURE TO EXPLAIN THE TERMS OF THE PLEA BARGAIN TO PETITIONER, RESULTED IN A COERCED PLEA OF GUILTY. AS SUCH, A HEARING IS REQUIRED TO DETERMINE WHY PETITIONER ASSERTS THAT HE WAS LEAD TO BELIEVE BY TRIAL COUNSEL THAT HIS NEW JERSEY SENTENCE WOULD RUN CONCURRENT TO HIS PENNSYLVANIA SENTENCE AND THAT HE WOULD RECEIVE STRAIGHT JAIL CREDITS FOR THE TIME HE SPENT IN CUSTODY IN NEW JERSEY, DESPITE WHAT APPEARS IN THE RECORD. THIS DISPARITY CONSTITUTES A VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm substantially for the reasons set forth in the oral opinion of Judge Jeanne Covert.
At the time of the November 16, 2009 plea hearing, defendant was serving a sentence for a Pennsylvania conviction and had been incarcerated at the State Correctional Institution at Greenberg. He was transferred to Burlington County following his request to resolve the charges in New Jersey, pursuant to the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15.
When the hearing commenced, the prosecutor recited the terms of the proposed plea as they appeared on question thirteen of the plea form executed by defendant. The prosecutor explained upon conviction following defendant's guilty plea a probationary sentence conditioned on 180 days in the county jail would be imposed. Defendant was to make full restitution in the amount of the forged check; and finally, the sentence imposed "would also run consecutive to any sentence [defendant was] presently serving."
Defendant, through counsel, acknowledged he accepted the terms as stated and also requested to be sentenced in abstentia so he could be returned expeditiously to Pennsylvania. Thereafter, defendant was questioned by Judge Covert. He stated that he attended four years of college and had no difficulty reading, writing, or understanding English. He responded negatively to Judge Covert's questions regarding whether he suffered from any mental disabilities, was under the influence of drugs or alcohol, or impaired by other substances affecting his ability to make a decision in his best interest. The judge outlined the maximum sentence were defendant convicted following trial, taking note defendant was extended term eligible. Continuing the colloquy with defendant the judge said:
THE COURT: Now[,] because you're pleading guilty, the State has agreed --well, actually it was a nonnegotiated plea which means I got involved and --
THE COURT: -- and what I said was you would receive probation conditioned upon serving 180 days in the Burlington County Jail and that the probation would terminate upon the completion of your jail sentence. This, however, runs consecutive which means in addition to any sentence ...