On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1284.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30 2012
Before Judges Alvarez, Waugh and St. John.
Defendant Jaire L. Highsmith appeals a December 18, 2009 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted by a Camden County Grand Jury for the first-degree murder of Stephen Goebel, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); third-degree possession of a weapon (a folding knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (counts four and five). Defendant eventually entered a guilty plea to an amended count one, charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). He was sentenced on December 6, 2002, in accord with the agreement, to a thirty-year custodial term, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The court imposed appropriate fines and penalties, which when added to restitution totaled $14,495. The remaining four counts of the indictment were dismissed. On November 13, 2006, defendant was resentenced to the same term of imprisonment pursuant to our remand order in accord with State v. Natale, 184 N.J. 458 (2005).
Thereafter, defendant pursued an appeal heard on the excessive sentence oral argument calendar. See R. 2:9-11. On September 17, 2007, we affirmed the sentence.
Defendant subsequently filed a PCR petition pro se. He was assigned counsel, and a supplemental brief was filed on his behalf. Before the trial court, defendant contended that: (1) he was not advised that the NERA five-year period of parole supervision exposed him to a resentence beyond the term of the initial thirty-year plea bargained incarceration thereby entitling him to a materiality hearing pursuant to State v. Johnson, 182 N.J. 232 (2005); (2) he was entitled to withdraw his guilty plea; and (3) trial counsel was ineffective in failing to present a diminished capacity defense.
Defendant certified that he "had a good-faith belief that [his] serious drug and alcohol addiction at the time of the incident which gave rise to the indictment caused significant mental problems which could have formed the basis of a diminished capacity defense to the charges." He also claimed that the plea form which he signed did not include supplemental pages explaining NERA's provisions for parole supervision, specifically, the fact that if resentenced on a parole violation the additional term of years could exceed the agreed-upon thirty years. Defendant denied that this possibility was explained to him at the plea hearing, at the sentence, or by his trial attorney. He also argued that if he had been made "aware of these potential penal consequences of [the] plea" he would not have entered a guilty plea.
Following oral argument, the trial court denied defendant's PCR petition, first finding it time-barred. See R. 3:22-12.
The petition was filed more than six years after his sentence, or one year beyond the five-year deadline found in the rule. The judge found that no manifest injustice resulted from the entry of the plea, as it "was a strategic decision made by this defendant in the face of the allegation of 72 stabbings and the throat slitting. It saved him from a life sentence."
The judge also concluded as a second basis for denial that given the state of the law at the time the plea was placed on the record, the trial court's explanation of the NERA consequences was legally sufficient. Neither Johnson, supra, 182 N.J. 232, nor State v. Freudenberger, 358 N.J. Super. 162 (App. Div. 2003), had been decided. Additionally, the court found that the record was devoid of any proofs that an intoxication defense was warranted other than defendant's bare allegation.
Finally, the judge observed that defendant had ample opportunity to raise these issues on direct appeal and failed to do so. He was thereby separately barred from pursuing ...