STATE OF NEW JERSEY v. BRIAN BENEDIK

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5118-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN BENEDIK,

Defendant-Appellant.

_____________________________

June 22, 2012

 

Submitted April 25, 2012 - Decided

 

Before Judges Fuentes and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-10-1472.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

 

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant Brian Benedik appeals from an October 30, 2009 order, which denied his petition for post-conviction relief (PCR) on the grounds that it was time-barred under Rule 3:22-12(a) and did not raise a prima facie claim of ineffective assistance of counsel. We affirm.

After previously confessing in detail to the Ocean County Prosecutor's Office, defendant entered a guilty plea on April 22, 2002, to two counts of aggravated sexual assault on an eleven-year-old boy who was in his care during 1999 and 2000. The State initially agreed to a maximum sentence of ten years with no mandatory minimum. The sentencing judge rejected the plea agreement. Defendant subsequently agreed to reinstate his guilty plea with a maximum term of sixteen years with an eight-year term of parole ineligibility. Defendant also pled to an unrelated theft count of another indictment and was sentenced to a concurrent three-year custodial sentence and ordered to pay $18,023.53 in restitution. The custodial sentence of sixteen years with an eight-year mandatory minimum was entered on August 26, 2002.

Defendant appealed the sentence and we entered an order on March 31, 2004, remanding the matter for a restitution hearing, as well as to give defendant "the right to move, prior to May 7, 2004, to withdraw his plea of guilty pursuant to State v.Bellamy, 117 N.J. 127 (2003) (holding that fundamental fairness requires that the trial court, prior to accepting a plea to [a] predicate sexual offense, must ensure that the defendant understands that, as a result of his plea, there is a possibility of future commitment, and that such commitment may be for an indefinite period, up to and including lifetime commitment)." Defendant did not subsequently move to withdraw his plea.

He filed a PCR on January 30, 2009, more than six years after he was sentenced, alleging his trial counsel was ineffective and seeking not to vacate his guilty plea, but rather to obtain the originally-promised ten-year sentence. The judge found that defendant filed the PCR beyond the five-year time limit in Rule 3:22-12(a) and, even if the petition were not time-barred, it did not present a prima facie case of ineffective assistance of counsel under Strickland v.Washington,466 U.S. 668,689,104 S. Ct. 2052,2065,80 L. Ed. 2d 674,694(1984).

On appeal, defendant raises the following issues:

POINTI: DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED.

 

A. THE PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE DEEMED TIME-BARRED BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.

 

B. THE PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22- 4 OR RULE 3:22-5.

 

POINTII: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

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

 

B. TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY MISINFORMING DEFENDANT THAT HE WOULD RECEIVE A SENTENCE OF NO MORE THAN TEN YEARS IN EXCHANGE FOR HIS GUILTY PLEA.

 

C. TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HIS FAILURE TO PROVIDE DEFENDANT WITH AND EXPLAIN[] NEW OR AMENDED PLEA FORMS THAT REFLECTED THE SENTENCE THAT WAS IMPOSED.

 

D. DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT TO AFFORD DEFENDANT AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

After reviewing the record in light of the arguments advanced on appeal, we affirm substantially for the reasons stated in the October 30, 2009 written opinion of Judge James Den Uyl.

Affirmed.