STATE OF NEW JERSEY v. KEITH ALLEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4366-06T44366-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH ALLEN,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 22, 2008 - Decided

Before Judges Stern and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Indictment No.

01-07-0841-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Bernado W. Henry, Designated

Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor,

attorney for respondent (Erin Smith Wisloff,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant pled guilty to conspiracy to commit controlled dangerous substances (CDS) offenses and CDS offenses in an indictment and two accusations. The negotiated disposition was for a sentence of twenty-four years in the custody of the Commissioner of Corrections with five years to be served before parole eligibility. Defendant received that sentence but we ordered the merger of conspiracy offenses on defendant's direct appeal. The merger did not affect the aggregate sentence. Numerous other charges were dismissed.

Defendant petitioned for post-conviction relief (PCR) claiming that he did not understand the difference between a concurrent and consecutive sentence. He argues that if he had been properly advised of the difference by his counsel, he would have requested his attorney to "attempt to negotiate a more favorable concurrent term." He also contends he was entitled to an evidentiary hearing to develop his claim.

Defendant may be academically correct in contending that counsel may be ineffective if he or she does not explain the difference between concurrent and consecutive sentences and the possibility of the imposition of a consecutive sentence. The record before us contains no statement or certification of defendant that he would not have entered the plea, which was beneficial to him, if counsel had reviewed the difference between concurrent and consecutive sentences. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); cf. State v. Johnson, 182 N.J. 232 (2005) (materiality must be demonstrated to withdraw a guilty plea). In any event, irrespective of what may have been presented in the petition which is not in defendant's appendix, in this case the plea form expressly refers to "consecutive" sentences necessary to achieve the recommended sentence of "24 [years] NJSP with 5 [years] parole ineligibility," and defendant expressly acknowledged the negotiated sentence recommendation, which was the aggregate sentence imposed.

Accordingly, this record does not permit the granting of PCR based on the argument made.

We affirm the denial of PCR substantially for the reasons expressed by Judge Salem V. Ahto in his oral opinion of March 19, 2007, as supplemented herein.

At the PCR hearing, there was a discussion about the impact of the sentencing judge's reference to "flat" parole eligibility "of eight years" on the aggregate twenty-four year sentence independent of the "five years of stip time," and the consequences thereof. There is no question that defendant received a five year parole ineligibility term on a ten year sentence which constituted part of the aggregate twenty-four year sentence. Defendant does not raise any issue with respect to the aggregate period of parole ineligibility. His only argument is:

Counsel's failure to discuss the material difference between a consecutive sentence and a concurrent sentence constitutes a prima facie case of ineffective assistance of counsel and as a result an evidentiary hearing should have been held to determine what effect if any this had on plea negotiations in the matter.

The affidavit to which defendant counsel referred at the hearing also is not in the record.

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A-4366-06T4

October 31, 2008