NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 28, 2013
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 05-04-0457 and 05-11-1568.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).
Before Judges Waugh and Haas.
Defendant Michael Stallworth appeals from the February 27, 2012 order of the Law Division denying his petition for post-conviction relief (PCR) without conducting an evidentiary hearing. Having considered defendant's arguments in light of the record and controlling law, we conclude he is entitled to a hearing on his claims. Accordingly, we reverse the order that denied his PCR petition without a hearing and remand for a hearing.
On April 5, 2005, defendant was charged in a five-count Ocean County indictment with first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five). On September 7, 2005, defendant entered into a plea agreement under which the State agreed to amend count two of the indictment to fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4). In return for his guilty plea to this count,  the State agreed to recommend that defendant be sentenced to eighteen months in prison, with an eighteen-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c.
On November 14, 2005, defendant returned to court before the same trial judge and pled guilty to a separate, one-count accusation, charging him with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). In return for his plea, the State agreed to recommend that defendant be sentenced to eighteen months in prison, concurrent to the sentence he would receive under the earlier indictment.
The judge questioned defendant on the record regarding the terms of this plea. Defendant testified that he understood that, although he was still a juvenile, he would be treated as an adult for purposes of the charge. Defendant also stated he understood the recommended sentence.
During the colloquy, however, defendant raised a specific concern about the impact his plea would have in the future should he be charged with additional offenses. The following exchange occurred between the court, defendant, defense counsel and the prosecutor:
[THE COURT]: [H]ave any other promises been made to you?
[DEFENDANT]: Only that everything together is going to be one conviction.
[THE COURT]: Well, it is not going to be one conviction. You will have convictions for two offenses but they will run concurrent.
[DEFENSE COUNSEL]: Judge, for the purposes of the record, if [defendant] were to get in trouble again, it would only count as one conviction since it would be on the same day with the same judge. It would be two separate offenses but one conviction because we have the same sentencing date.
[THE COURT]: Well, he would have - - this is semantics now. What are you indicating would be the effect? These are ...