NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-04-0301.
Joseph E. Krakora, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Sabatino.
On August 9, 2010, defendant David Jackson pled guilty before Judge Timothy G. Farrell to count two of Salem County Indictment No. 09-04-301 ("Indictment 301") charging him with third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(5), and count one of Salem County Indictment No. 10-05-00199 ("Indictment 199"), charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). The State agreed to dismiss the remaining counts of both indictments at sentencing.
Defendant consented to imposition of an extended term based upon his prior convictions. The State agreed to recommend an eight-year term of imprisonment with a four-year period of parole ineligibility on Indictment 301, and a concurrent four-year term on the other indictment.
During the plea colloquy, defendant was placed under oath and questioned by defense counsel regarding his understanding of the plea bargain. Defendant indicated he understood its terms. Defendant further acknowledged that he was waiving certain rights by pleading guilty, the answers on the plea form were accurate and no one had threatened or coerced him into pleading guilty. Defendant provided a factual basis for both guilty pleas.
Represented by successor defense counsel, defendant filed a motion to withdraw his guilty plea, which Judge Farrell considered on the date set for sentencing. Defendant asserted that he had wished to plead guilty to only Indictment 199 and proceed to trial on Indictment 301; however, the prosecutor would not agree. Defendant claimed that, as a result, he was confused and did not voluntarily plead guilty to Indictment 301.
The judge considered the argument and applied the factors set forth by the Court in State v. Slater, 198 N.J. 145, 157-58 (2009). Judge Farrell first noted that defendant had not "asserted a colorable claim of innocence." Id. at 157. Considering "the nature and strength of defendant's reasons for withdrawal, " id. at 157-58, the judge found "no basis [of] support" for defendant's motion. Judge Farrell noted the existence of a plea bargain, the third Slater factor. Id. at 158. Lastly, the judge found that permitting withdrawal of the plea would not prejudice the State or unfairly advantage defendant. Ibid. After weighing these factors, Judge Farrell denied the motion and imposed sentence in accordance with the plea bargain.
Defendant did not file a direct appeal, however, he filed a timely pro se petition for post-conviction relief (PCR) in which he alleged that trial counsel provided ineffective assistance. Specifically, defendant certified that "counsel gave him misinformation and advice[, ] and the sentence was not in agreement with the plea form as . . . counsel le[d] [defendant] to believe."
After PCR counsel was assigned, defendant filed a supplemental certification in which he noted that question fourteen on the plea form indicated that the State was not seeking an extended term of imprisonment. Defendant claimed that based on a conversation he had with successor counsel, he believed he "was going to receive two flat [four-year] sentences to run concurrent with each other." PCR counsel advanced other arguments in her ...