NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2012
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-08-1152.
Herlihy & Young, attorneys for appellant (Francis Rodman Rupp, of counsel and on the briefs).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).
Before Judges Alvarez and St. John.
Defendant Craig Orler appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us.
An Ocean County Grand Jury returned Indictment No. 05-08-1152 charging defendant with the second-degree use of personal identifying information of another, N.J.S.A. 2C:21-17.2(a) (count one), and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count two). On December 13, 2005, defendant pleaded guilty to count one. At the plea hearing, the prosecutor indicated that the State would "seek dismissal of the balance of the indictment, some summonses and motor vehicle summonses." In addition, the prosecutor would request "a seven-year sentence . . . concurrent to the [State] sentence the defendant is presently serving." Defendant affirmatively responded to the judge's question that, "it is his understanding that pursuant to a plea agreement, the State, at sentencing is going to seek a sentence of seven years concurrent to the sentence you are presently serving."
There was no mention made of any federal charges at the plea hearing or in defendant's written plea agreement. Under paragraph thirteen of the plea agreement form which states, "[s]pecify any sentence the prosecutor has agreed to recommend, " the only recommendation listed is "7 years NJSP concurrent to sentence defendant is presently serving."
On March 10, 2006, at the sentencing hearing, defense counsel indicated that he had read defendant's adult pre-sentence report, which contained no information regarding any federal charges. Defense counsel stated: "There [we]re no additions or corrections to be made for sentencing. Your Honor, Mr. Orler is presently serving a state prison sentence . . . . We'd just ask that your Honor sentence him on this new matter to a concurrent term." Defendant then addressed the judge saying, "I was kind of hoping, your Honor, that I would be sentenced in absentia, being as though I have the federal case to take care of. I was going just to run this by you, ask you if you could do this for me. If not, I will go with the sentence." (Emphasis added). When the judge hesitated, defendant explained,
the problem is that if I'm sentenced to seven years, that I have to do the seven years before I go to the federal prison, now they're going to — I'm going to be getting a lot of time there and, you know, it just wouldn't be right for me to do seven years and then ...