NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-08-0568.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Harris.
Defendant Arthur Augustine appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Pursuant to a negotiated plea agreement, defendant pled guilty to a four-count indictment charging him with third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); fourth-degree obstruction of the administration of the law, N.J.S.A. 2C:29-1; and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b. In exchange for defendant's guilty plea, the State agreed to recommend an aggregate sentence of ten years with a forty-five month period of parole ineligibility pursuant to the Brimage guidelines.
Defendant was ultimately sentenced in accordance with the plea agreement. However, at the originally scheduled sentencing hearing on February 1, 2008, defendant voiced concerns over the "waive extended term" language that was scratched off his plea form and replaced by legibly written words "pursuant to Brimage." The sentencing judge explained that the language was excised because it did not apply in his case and thereafter adjourned the sentencing to allow defendant the opportunity to discuss the matter with counsel.
When defendant returned for sentencing on February 15, 2008, the judge asked him if he wanted to proceed with the sentencing. Defendant answered, "Yes, your Honor[, ]" and went on to indicate that the reason he raised concerns at the earlier sentencing date was because he believed the plea form had been altered without his consent. When he was next asked if he had "any further concern about the scratch-out[, ]" he responded, "I spoke to my lawyer. I guess not."
The sentencing judge then explained to defendant that the scratch-out was the result of an error in the plea form that referenced waiving an extended term, when in fact his plea was pursuant to the Brimage guidelines. The judge additionally stated to defendant, "So it's plain to see that that was written in error, right?" Defendant responded, "Yeah." At that point, the sentencing judge again asked defendant if he had any concern about the scratch-out, to which defendant replied, "I guess not, your Honor." As noted, the court ultimately sentenced defendant in accordance with the plea deal he struck with the State.
Defendant appealed and we affirmed his judgment of conviction on our Excessive Sentence Oral Argument calendar.
Defendant filed a timely PCR petition in which he alleged, among other things, that counsel was ineffective for failing to move to withdraw defendant's guilty plea because he was confused and misled about his sentencing exposure. Following ...