NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-02-0161.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Al Garcia, Assistant Prosecutor, on the brief).
Before Judges Axelrad and Nugent.
Defendant Armond Holloway appeals from the July 27, 2010 Law Division order that denied his post-conviction relief (PCR) petition without an evidentiary hearing. Arrested twice within seven months for committing drug and weapon offenses, defendant was charged in separate indictments, entered guilty pleas on separate dates, and was sentenced on separate dates. Each sentence included a period of parole ineligibility. In this appeal, defendant alleges that his trial counsel and PCR counsel were ineffective; trial counsel for not explaining explicitly when defendant would be eligible for parole and for not attempting to have him sentenced on both indictments on the same date, and PCR counsel for not making those arguments in the PCR petition. We affirm.
On December 15, 2004, defendant was arrested (the first arrest) for possessing a substantial quantity of cocaine, scales, and a loaded semi-automatic handgun. Two days later he posted bail. Four months later, on April 1, 2005, a grand jury charged defendant in a six-count indictment (the first indictment) with, among other offenses, first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1) (count two). On June 27, 2005, defendant waived the requirement that the State make an application for an extended term sentence and pled guilty to count two of the first indictment. In exchange, the State agreed to recommend a twenty-year prison term with four-and-one-half years of parole ineligibility. The court did not revoke defendant's bail.
Less than a month later, on July 20, 2005, defendant was arrested (the second arrest) after police watched him sell cocaine from the porch of his house. When police tried to arrest him, he retreated into the house where he discarded a handgun and a large plastic bag containing cocaine. The police confiscated from the house a rifle, ammunition, cocaine, packaging material, and a digital scale. Defendant's bail was revoked and he has since remained in jail.
Sixty-four days after his second arrest, on September 23, 2005, defendant appeared for sentencing on count two of the first indictment. When the court mentioned the second arrest and its understanding that "the new file is not being dealt with today, " the prosecutor responded:
No your Honor. [Defense counsel] and I have had discussions. Actually, the last time we were in court your Honor gave us an adjournment to work something out on that new file. That new file is being handled by the Project Safe Neighborhood Unit . . . . Apparently [the other prosecutor] and [defense counsel] have not had any discussions about it. As such, I am not in a position to do anything with that file today, but the [S]tate is prepared to move forward on sentencing on this one.
The court sentenced defendant in accordance with the plea agreement to twenty years with four-and-one-half years of parole ineligibility, and imposed appropriate assessments and penalties. The court gave defendant jail credit for the three days he had spent in jail following his first arrest, plus "sixty-seven days' jail credits." The court also sentenced defendant to a concurrent five-year prison term, with no parole disqualifier, for violating a probationary sentence that had been imposed by the court in 2001.
Five months after defendant was sentenced on count two of the first indictment, a grand jury returned a sixteen-count indictment (the second indictment) based on the crimes defendant committed on July 20, 2005. The grand jury charged defendant with, among other crimes, first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1) (count ...