NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 01-08-1608 and 01-10-2003.
Joseph E. Krakora, Public Defender, attorney for plaintiff (Monique Moyse, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Guadagno.
Defendant Carlos Cutler appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with two first-degree robberies, first-degree conspiracy to commit robbery, third-degree criminal restraint, fourth-degree aggravated assault with a firearm, second-degree unlawful possession of a firearm, third-degree unlawful possession of a handgun and second-degree certain persons not to have a weapon. An unrelated indictment charged defendant with four counts of drug offenses, including second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility.
On November 13, 2002, pursuant to negotiations with the State, defendant pled guilty to one count of first-degree robbery, N.J.S.A. 2C:15-1, and to third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). As to the former, defendant and two cohorts bound and robbed five occupants of an Atlantic City casino hotel room at gunpoint. Defendant was later apprehended by casino hotel security, arrested, and found to have a chain belonging to one of the victims on his person. In return for his plea, the State agreed to dismiss the remaining counts of the two indictments and to recommend an aggregate twelve-year term with an eighty-five percent parole disqualifier. Defendant was continued on bail and sentencing was scheduled for January 10, 2003.
Defendant failed to appear for sentencing and became a fugitive. He was apprehended four years later in Maryland and extradited to New Jersey. On the day of sentencing, October 18, 2007, defendant moved pro se to withdraw his guilty plea, alleging that he was coerced into pleading guilty. The court denied the motion, finding defendant voluntarily and knowingly entered into the plea agreement, and sentenced defendant in accordance therewith to a twelve-year term subject to the eighty-five percent parole disqualifier on the armed robbery offense and a concurrent four-year term on the drug crime.
Defendant's appeal was heard on our Excessive Sentence Oral Argument (ESOA) calendar pursuant to Rule 2:9-11. In affirming the conviction, we expressly found "no error in the trial court's denial of defendant's motion to withdraw his guilty plea."
On July 20, 2010, defendant filed a timely PCR petition wherein he alleged ineffective assistance of plea, sentencing and appellate counsel. As to the former, defendant claimed plea counsel coerced him into pleading guilty and allowed him to be misinformed as to his potential sentencing exposure if found guilty at trial. Defendant also criticized sentencing counsel for failing to effectively advocate for his withdrawal motion, and appellate counsel for failing to appeal fully, denial of that motion.
After a non-evidentiary hearing, the PCR judge denied defendant's petition. He found the claim of ineffective assistance of plea counsel was essentially identical to the claim of coercion that formed the basis of defendant's motion to withdraw his guilty plea, and therefore held the claim to be procedurally bared under Rule 3:22-5 as previously rejected by the sentencing judge and this court. Substantively, the PCR judge found the claim to be without merit as belied by the plea transcript and agreement themselves, both of which revealed a knowing and ...