NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-07-0677.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
Before Judges Sabatino and Fasciale.
Defendant appeals from an order denying his petition for post-conviction relief (PCR) and an order denying reconsideration. He argues that his trial counsel misadvised him about a "global" plea offer. We affirm.
As of 2004, defendant faced charges in five pending indictments. On January 26, 2004, the trial judge conducted a pre-trial conference on the record, in defendant's presence, regarding one of the indictments (02-04-414). At this proceeding, the assistant prosecutor verified that the State's global offer to resolve all five indictments was a sentence recommendation of twenty years in prison, subject the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Two lawyers appeared for defendant at the hearing. The first attorney appeared on 02-414-04. The second attorney was present because he represented defendant on the other indictments. The judge allowed both attorneys to meet with defendant to discuss the proposed resolution of all charges. Defendant rejected the plea offer, proceeded to trial on 02-414-04, and was found guilty of several of the charges.
In indictment 03-07-677, the State charged defendant with first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. In October 2004, defendant proceeded to trial and a jury found defendant guilty of these charges.
In 03-07-677, the judge imposed an aggregate extended sentence of sixty years in prison with forty-nine and a quarter years without parole, concurrent to his sentence on the other indictments. We affirmed the convictions, but remanded for re-sentencing in accordance with State v. Thomas, 188 N.J. 137 (2006), and State v. Natale, 184 N.J. 458 (2005). State v. Hall, No. A-2652-05 (App. Div. Apr. 24, 2008). The Supreme Court denied certification. State v. Hall, 207 N.J. 35 (2011).
Defendant filed a pro se petition for PCR and his designated counsel thereafter filed an amended petition and brief. Defendant argued that his trial counsel failed to accurately advise him about the global offer. Defendant asserted that had he known about the plea offer, he would have accepted it.
In November 2010, Judge Joseph A. Falcone conducted an evidentiary hearing. The judge listened to testimony from defendant and his two lawyers. Both lawyers testified that an assistant prosecutor made the global offer, they discussed the offer with defendant, and defendant rejected it. Defendant testified that his attorneys indicated the global offer was a sentencing recommendation of twenty-five years in prison, not twenty years. Judge Falcone then stated that
The critical issue is . . . whether or not [defendant] made an informed decision to proceed to trial. In that regard[, ] I've heard this morning the testimony of three witnesses: [the first attorney] on one of his five indictments; [the second attorney] on the other four indictments, two of which went to trial – on one of them he was acquitted; on one [03-677-07] he was convicted . . . and he pled ...