NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 90-05-1562 and 90-06-1782.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
Before Judges Espinosa and Hoffman.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant entered a guilty plea to two counts of first-degree robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement in which defendant stipulated he was subject to an extended term sentence pursuant to N.J.S.A. 2C:44-3(a). In 1991, he was sentenced to concurrent terms, an aggregate sentence of life imprisonment with a minimum parole ineligibility period of fifteen years. In his statement of reasons, the sentencing judge stated that the sentence was imposed "with the clear understanding that in the event the defendant was accepted into an in-patient drug treatment program after having served five years the sentence would be modified to one of probation conditioned upon his successful completion of the program." Defendant did not file a direct appeal from this conviction and sentence.
In 1995, defendant filed a motion to modify his sentence. His motion was granted and he was sentenced to two concurrent five-year terms of probation, with the condition that he successfully complete an in-patient drug program. In 1997, defendant was charged with a violation of probation for failing to remain drug-free. His probation was not revoked at that time. Probation was continued, again with the condition that he successfully complete a drug treatment program.
Defendant was charged with a second violation of probation in 2000, based upon his failure to report to his probation officer and convictions for possession of a controlled dangerous substance and robbery. The court revoked his probation and, pursuant to State v. Williams, 299 N.J.Super. 264 (App. Div. 1997), defendant was remanded to serve the balance of the sentence originally imposed. Defendant filed an appeal from this order but withdrew it prior to its disposition on the merits.
Defendant filed another motion to change custody so he could enter a drug treatment program pursuant to Rule 3:21-10(b)(1) in 2007. That was denied in December 2007. He filed another motion for change of custody in 2008, which was also denied. In addition, defendant filed a motion to withdraw the guilty plea he had entered in 1991. After reviewing defendant's motion in light of the factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009), the trial judge denied the motion and set forth his reasons in a written opinion.
In 2009, defendant filed a notice of appeal in which he only identified the order denying his motion to change custody. However, his brief also presented arguments regarding the denial of his motion to withdraw his guilty plea. Although the issue regarding the withdrawal of his guilty plea was not properly before us, we addressed both his appeal from the denial of his motion to change custody and his challenge to the denial of his motion to withdraw his guilty plea. In an unpublished opinion, State v. Evans, No. A-3430-08 (App. Div. Feb. 9, 2010), we affirmed the denial of his motion and stated that "there is no merit to his arguments" regarding the withdrawal of his guilty plea. Id. at n.2.
Defendant filed a PCR petition pro se in February 2010. He argued he received ineffective assistance of counsel because his attorney allowed him to plead guilty and made inadequate argument on his behalf at sentencing. Counsel was assigned to him and an amended petition and brief in support of his petition was filed. Defendant also filed a supplemental letter ...