STATE OF NEW JERSEY v. FREDDIE BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDDIE BROWN,

Defendant-Appellant.

______________________________________________________

April 7, 2014

Submitted April 1, 2014 Decided

Before Judges Fisher and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-04-0462.

Joseph E. Krakora, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel).

PER CURIAM

Pursuant to a negotiated plea agreement, defendant pleaded guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-4(a); the State agreed to recommend a nine-year prison term. The trial judge sentenced defendant on the aggravated-assault conviction to an eight-year prison term, with an eighty-five percent period of parole ineligibility, and, on the weapons conviction, a concurrent eight-year prison term with a four-year parole bar. Defendant's direct appeal was placed on a sentencing calendar; we affirmed. State v. Brown, No. A-2419-07 (Jan. 7, 2009).

Defendant filed a timely post-conviction relief (PCR) petition, arguing his trial attorney was ineffective in failing to either argue the mitigating factor set forth in N.J.S.A. 2C:44-1(a)(11) (the impact of incarceration on dependents), or advise of his entitlement to, or the impact of, gap-time credit.1 These arguments were rejected and relief denied by an opinion and order entered on June 24, 2011.

In appealing, defendant argues:

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING PETITIONER A MEANINGFUL HEARING IN WHICH THE COURT SHOULD HAVE CONSIDERED MITIGATING FACTORS AND WHETHER TRIAL COUNSEL HAD ADVISED PETITIONER OF THE EFFECT OF PAROLE INELIGIBILITY ON GAP-TIME CREDIT.

A. Petitioner Has Established A Prima Facie Claim Of Ineffective Assistance Of Counsel.

B. The Order Denying Post-Convic-tion Relief Should Be Reversed And The Matter Remanded To The Law Division For A Meaningful Eviden-tiary Hearing.

We reject this argument substantially for the reasons set forth by Judge William L'E. Wertheimer in his thorough and well-reasoned written opinion.

1We note that in appealing the sentence, defendant argued to us that mitigating factor 11 should have been applied, but he did not present an argument about entitlement to gap-time credit.