NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2013
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-04-0468.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall and Koblitz.
Defendant Kevin C. Rahilly appeals from the August 29, 2011 order denying his petition for post-conviction relief (PCR) after oral argument and after an evidentiary hearing as to one issue only. The Burlington County Grand Jury returned Indictment No. 06-04-0468, charging defendant with first-degree robbery, N.J.S.A. 2C:15-1(a)(2), and related charges. Defendant claims that he was deprived of the effective assistance of counsel because his lawyer failed to pursue a Miranda hearing and failed to inform him that no surveillance videotape existed from the store where the robbery occurred. He also alleges that his attorney did not accurately advise him of the consequences of "pleading open" to a first-degree robbery charge, rather than accepting an agreed-upon maximum sentence of eight years. Defendant was sentenced to ten years in prison with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Because his attorney did not advise him that by "pleading open" the judge would be required to impose a sentence of at least ten years, unless the judge found both that the mitigating factors substantially outweigh the aggravating factors and that compelling reasons demonstrated that the interest of justice demands such a reduced sentence, we reverse and remand to allow defendant to withdraw his guilty plea and proceed to trial.
Defendant admitted at his guilty plea hearing that on October 20, 2005, he entered a Quickie Mart in Burlington, showed the clerk a bladeless box cutter and stole $250. Defendant did not appear at the scheduled sentencing date. He was sentenced approximately six months later after being rearrested. The State sought a sentence of twelve to thirteen years. Defendant spoke on his own behalf and presented letters and witnesses attesting to his efforts at rehabilitation, his payment of child support for his children and his positive presence in his son's life.
The PCR judge determined without a hearing that it was not significant whether defendant's counsel had misinformed defendant about the existence of a store surveillance videotape. She found that sufficient other evidence existed such that defendant could not demonstrate that he would not have pled guilty had he known of the absence of the videotape. The PCR judge also determined that pursuit of a Miranda hearing would have been unsuccessful. She ordered an evidentiary hearing to determine whether defense counsel misinformed defendant of the consequences of "pleading open."
At the evidentiary hearing privately retained defense counsel testified:
A: Mr. Rahilly decided he was going to plead open. At which time I advised him [of] the consequences of pleading open.
Q: What did you say to him?
A: I told Mr. Rahilly that the judge -- there was no way the judge was going to give him under eight years unless we could prove that the mitigating factors far outweighed the aggravating factors. And I explained to him that we would have to show that ...