STATE OF NEW JERSEY v. MICHAEL GARDI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4842-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL GARDI,

Defendant-Appellant.

_______________________________

March 9, 2011

Submitted February 15, 2011 - Decided

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Law

Division, Sussex County, Indictment Nos. 01-12-0443

and 01-12-0444 and Accusation No. 03-04-0089.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Michael G. Paul, Designated Counsel, on

the brief).

David J. Weaver, Sussex County Prosecutor, attorney

for respondent (Rachelle C. Jones, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Gardi appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm.

Defendant was charged in Indictment No. 01-12-0443 with first-degree robbery, N.J.S.A. 2C:15-1 (count 1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count 3); and fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (count 5). Another indictment, No. 01-12-0044, charged defendant with three counts of third-degree burglary, N.J.S.A. 2C:18-2 (counts 1, 4 and 7); three counts of third-degree theft, N.J.S.A. 2C:20-3 (counts 2, 5 and 8); and three counts of fourth-degree criminal mischief, N.J.S.A. 2C:17-3 (counts 3, 6 and 9). Lastly, defendant was charged by accusation with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1).

Thereafter, the State entered into a plea bargain with defendant pursuant to which defendant pled guilty to counts 1 and 3 (armed robbery and weapons possession) of Indictment No. 01-12-0443; counts 1, 4 and 7 (burglary) and counts 2, 5 and 8 (theft) of Indictment No. 01-12-0444; and the accusation (possession of heroin), and agreed to testify truthfully against his co-defendants. The plea form executed by defendant acknowledged that the sentence imposed on the accusation "can" run concurrent with Indictment No. 01-12-0443 and the sentence on Indictment No. 01-12-0444 "can run concurrent within [it]self but can be consecutive to [Indictment No. 01-02-0]443." The plea form also noted that the State may recommend a "sentence consistent with defendant's maximum exposure [of twenty-five years] which may not be exceeded."

At sentencing, the trial court merged count 3 with count 1 of Indictment No. 01-12-0443 and imposed thereon a twelve-year term of incarceration, with the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. As to Indictment No. 01-12-0444, defendant was sentenced on counts 1 and 7 to four-year terms with a two-year period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), which would run concurrent to all parole ineligibility counts, but consecutive to Indictment No. 01-12-0443. On counts 2, 5 and 8, defendant was sentenced to four-year terms to run concurrent to count 1. On count 4, defendant received a four-year term, also with a two-year period of parole ineligibility that would run concurrent to all parole ineligibility counts, and concurrent to count 1. Finally, under Accusation No. 03-04-0089, defendant was sentenced to a concurrent four-year term. Thus, defendant received an aggregate sentence of sixteen years in state prison, and an eighty-five percent period of parole ineligibility.

We heard defendant's direct appeal on an excess sentence calendar, see R. 2:9-11, and affirmed his judgment of conviction, but remanded "for a clarification of the sentence under review." State v. Gardi, No. A-2363-04 (App. Div. Aug. 22, 2007). Thereafter, on October 18, 2007, an amended judgment of conviction was entered reflecting an aggregate sentence of sixteen years with an eighty-five percent parole ineligibility. When the matter returned to our excess sentence calendar on May 7, 2008, we once again affirmed defendant's judgment of conviction, concluding "that the trial court did not abuse its discretion in making defendant's sentence for the burglaries consecutive with his sentence for the armed robbery under Indictment No. 01-12-0443[,]" but remanded for entry of an amended judgment of conviction to accurately reflect that both the four-year base terms and the two-year periods of parole ineligibility for the burglaries are to run concurrent to each other, but consecutive to the sentence for the armed robbery under Indictment No. 01-12-0443. State v. Gardi, No A-2363-04 (App. Div. May 6, 2008).

Defendant filed a timely PCR petition claiming that his trial counsel was ineffective for misleading him into believing he would receive a lesser sentence (of ten years subject to NERA) than the sixteen-year term with an eighty-five percent period of parole ineligibility that was actually imposed. The PCR judge held an evidentiary hearing at which defendant testified and repeated his allegation, adding that the so-called offer was not included in the plea form so that the co-defendant's attorney could not use it against defendant when defendant testified against his client. Defendant also acknowledged, however, that the ten-year plea offer was never discussed with the State; that he never mentioned this offer or claimed that he was misled at either the guilty plea hearing, sentencing or on appeal; that he was fully informed of his maximum sentencing exposure; and that he stated on the record that no such promises were made to him in exchange for his plea.

Trial counsel also testified at the evidentiary hearing and denied defendant's allegations. Counsel confirmed that the State, as evidenced on the plea form and by the court while taking defendant's plea, made no specific offer, but rather reserved its right to seek the maximum sentence depending on the extent of defendant's cooperation. Counsel also testified that he did not recommend a specific sentence during his discussions with defendant as the sentence was based on the amount and quality of defendant's cooperation. Lastly, counsel testified that he "didn't detect any misunderstanding either at the time that we put the plea through or at any other time with [defendant] regarding what was going on with the proceedings and what was being presented to me."

At the close of evidence on January 15, 2009, the trial court issued a comprehensive oral opinion denying defendant's petition. The judge reasoned:

None of the documentation that the Court has reviewed, none of the pleadings submitted, reflect any determination by the

. . . Sussex County Prosecutor that they would acquiesce to that type of sentencing recommendation. Or recommend that type of sentence be imposed by the Court.

I have no doubt that when [trial counsel], an experienced Public Defender, discussed these matters with his client, [defendant], that he advised [defendant] of the parameters of the Code of Criminal Justice for a conviction for first and second degree crimes[, i]n terms of how many years an individual faces upon conviction and sentencing. And, that he advised [defendant] of what the requirements of the No Early Release Act are in terms of that statute and the crimes that are to be included in for that type of sentencing consideration.

. . . .

Yet in reviewing the plea form, as well as the plea proceeding, itself, as reflected in the transcript, it clearly indicates that the State would be basing its sentencing recommendation of [defendant] upon [defendant's] willingness to cooperate in his testimony truthfully in matters that concern co-defendants. And, indeed, Number 13 of the plea form clearly indicates that the State would have the right to seek a sentence that would be up to the maximum in terms of what the Court should be doing.

. . . .

The transcript of the plea proceeding

. . . fails to indicate any instance in which there's any hesitation on the part of [defendant] in terms of understanding what is occurring with respect to the answers given on the plea form. Indeed, and most importantly, where the defendant actually appeared before the Court for sentencing, at no point in the sentencing procedure, itself, was there any verbalization by [defendant] of any particular understanding of an agreement that the Court would be imposing a sentence of 10 years with 85 percent, everything to run concurrent.

. . . .

. . . And there's no indication in that [plea] transcript to indicate that [defendant] misunderstood, or he was objecting, or that there were any other promises as was pointed out by the Assistant Prosecutor in her questioning of [defendant]. Where he said in there were no other promises. None were made.

On appeal from the denial of his PCR petition, defendant presents the following arguments:

I. THE TRIAL COURT ERRED IN DENYING THE

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF REGARDING HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIP[LES] REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF BECAUSE HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

C. DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL AT RE-SENTENCING.

II. THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEFS AND IN DEFENDANT'S PRO SE PETITION IN SUPPORT OF POST CONVICTION RELIEF.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Conforti's January 15, 2009 oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).