NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 04-06-0481.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z. H. Abbasi, Designated Counsel, on the brief).
Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
Before Judges Simonelli and Haas.
Defendant Frank L. Hardy, III appeals from the February 9, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant was charged in seven counts of a fifteen-count Gloucester County indictment with second-degree conspiracy to commit burglary, N.J.S.A. 2C:18-2a(1), N.J.S.A. 2C:18-2b(2), and N.J.S.A. 2C:5-2 (count one); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1a(2), N.J.S.A. 2C:15-1(b), and N.J.S.A. 2C:5-2 (count three); second-degree complicity to commit burglary, N.J.S.A. 2C:18-2a(1), N.J.S.A. 2C:18-2b(1), and N.J.S.A. 2C:2-6 (count six); second-degree burglary, N.J.S.A. 2C:18-2a(1) and N.J.S.A. 2C:18-2b(1) and (2) (count seven); first-degree complicity to commit robbery, N.J.S.A. 2C:15-1a(2), N.J.S.A. 2C:15-1b, and N.J.S.A. 2C:2-6 (count eight); first-degree robbery, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:15-1b (count nine); and first-degree murder, N.J.S.A. 2C:11-3a(3) (count eleven). The charges stemmed from an armed robbery during which defendant went through the pockets of, and took money and drugs from, one of the two victims while one of his three co-defendants held a gun to the victim's head. The co-defendant then shot and killed the second victim.
Defendant entered an open guilty plea to counts six and eight in exchange for the State's agreement to dismiss all the other charges and to recommend a sentence of a minimum of fifteen years with a cap of twenty-two years, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In accordance with this plea agreement, the trial judge sentenced defendant to an aggregate eighteen-year term, subject to NERA, with a five-year period of parole supervision upon release.
Defendant appealed his sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed. The Supreme Court denied defendant's petition for certification. State v. Hardy, 194 N.J. 269 (2008).
Defendant filed a pro se PCR petition, arguing that he entered the plea agreement under duress; the record did not support a finding of accomplice liability; and the trial judge did not properly consider the aggravating and mitigating factors in determining his sentence. Assigned counsel argued in his letter brief that defendant's trial counsel rendered ineffective assistance by: (1) negotiating a sentence with a base of fifteen years; (2) failing to argue for the minimum sentence of fifteen years; (3) assuring defendant he would be sentenced to fifteen years subject to NERA if he pled guilty; and (4) failing to point out to the trial court that an eighteen-year NERA sentence required defendant to serve more than fifteen years before he was eligible for parole.
In a February 9, 2011 written opinion, Judge M. Christine Allen-Jackson concluded that defendant failed to satisfy the first prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient. With regard to defendant's claims regarding his sentence, the judge found that trial counsel effectively negotiated a favorable plea agreement for defendant, raised appropriate mitigating factors, and argued that defendant be sentenced at the bottom of the range. The judge further found that the transcript of the plea proceeding reflected that the NERA requirements were carefully explained to defendant and he testified he understood these requirements. Because we previously rejected defendant's arguments concerning his sentence on direct appeal, the judge also found that these claims were barred by Rule 3:22-5.
The judge also found that defendant's other arguments lacked merit. Because defendant testified he fully understood all of the terms of the plea and that no one had "force[d] or threaten[ed]" him to accept the terms of the plea, the judge found no support in the record for defendant's claim that he entered the plea agreement under duress. Defendant admitted that he and his three co-defendants planned the armed robbery of the victims. Therefore, the judge ...