NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 79-06-0974.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez and Carroll.
The Atlantic County grand jury returned Indictment No. 79-06-0975 against defendant Lorenzo Carter in connection with a March 29, 1980 shooting, which resulted in the death of Everton Kelly and the wounding of John Sessoms. Specifically, the indictment charged defendant with one count of unlawful possession of a handgun, N.J.S.A. 2C:29-5d (Count One); two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4 (Counts Two and Four); one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); and one count of knowing or purposeful murder, N.J.S.A. 2C:11-3 (Count Five).
Defendant was a fugitive on these charges for some thirty years until he was apprehended in New York in February 2010. He retained counsel, who in a series of pre-trial motions was successful in suppressing evidence seized from defendant's residence based on a defective search warrant, and compelling the State to provide current addresses for the witnesses it intended to call at trial.
Trial commenced with jury selection on May 15, 2012, followed by opening statements and witness testimony on May 16, 2012. On May 17, 2012, after an adverse ruling on an inlimine motion, defendant pled guilty to Count Three, and to aggravated manslaughter, as a lesser-included offense of Count Five. In return, the State agreed to dismiss the remaining counts of the indictment, as well as a separate indictment charging a drug offense. The State also recommended that defendant be sentenced to twelve years imprisonment on the aggravated manslaughter charge, and a consecutive eight-year term on the aggravated assault charge. Under the sentencing laws in effect at the time these crimes were committed, they carried no mandatory period of parole ineligibility.
Before Judge Kyran Connor, and represented by counsel, defendant acknowledged his understanding of the plea agreement, and that he could have received thirty-years imprisonment, with fifteen-years of parole ineligibility, if convicted on the more serious murder charge. Defendant indicated he was not a United States citizen, and acknowledged that it was likely he would be deported as a consequence of his guilty plea. He further acknowledged that he might be required to serve additional prison time on an outstanding Arizona warrant.
On the plea form, and in his colloquy with the court, defendant reiterated that he understood the charges and his rights, including his right to continue the trial; understood his sentencing exposure; and was pleading guilty voluntarily, because he was in fact guilty of the charges. Further, defendant indicated that he had reviewed the discovery with his attorney, and was satisfied with counsel's services. As to a factual basis for his plea, defendant admitting shooting into the victims' car from a distance of approximately three feet. Five shots struck and wounded Sessoms. Kelly, who was a passenger seated next to Sessoms in the vehicle, was shot twice and killed.
On June 1, 2012, defendant addressed a letter to the court, essentially indicating that although he originally agreed to an earlier offer of a twelve-year flat sentence supposedly extended by the State, he was misled by counsel and forced to go to trial. In this letter, defendant did not seek to withdraw his guilty plea. Rather, he asked for "a plea consideration when [I] come to court for sentenc[ing]."
At the sentencing hearing on June 22, 2012, defendant addressed the court with respect to his earlier letter. According to defendant, he did not have the opportunity to accept a more favorable plea offer extended by the State in September 2011, because his family was unable to communicate his acceptance of that offer to defense counsel until after the State's ...