STATE OF NEW JERSEY v. TERENCE L. THOMPSON

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0650-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TERENCE L. THOMPSON,

     Defendant-Appellant.
____________________________

              Submitted January 9, 2018 – Decided March 16, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              97-06-1623.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John A. Albright, of counsel
              and on the brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney   for   respondent   (Jason   Magid,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant appeals from an August 9, 2016 order denying his

application for post-conviction relief (PCR) but granting his

application for a resentencing hearing.           He argues:

            POINT I

            AFTER THE PCR COURT PROPERLY FOUND THAT
            DEFENDANT WAS NOT ADVISED OF HIS MAXIMUM
            SENTENCING EXPOSURE OR THAT HE WAS EXTENDED
            TERM ELIGIBLE, THE COURT ERRED IN THE REMEDY
            FOR    TRIAL    COUNSEL'S     CONSTITUTIONALLY
            DEFICIENT PERFORMANCE – DEFENDANT SHOULD HAVE
            BEEN PLACED IN THE POSITION HE WOULD HAVE BEEN
            IN BUT FOR THE MISADVICE, AND AFFORDED AN
            OPPORTUNITY TO ACCEPT THE PLEA OFFER OF TWENTY
            YEARS WITH A TEN-YEAR PAROLE DISQUALIFIER.

And in his pro se supplemental brief he raised the following

additional argument:

            POINT I

            THE PCR . . . JUDGE ABUSED HER DISCRETION BY
            FAILING TO APPLY THE PROPER REMEDY WHICH WAS
            TO REOFFER THE PLEA ONCE THE STATE CONCEDED
            THAT DEFENDANT WAS NEVER ADVISED BY HIS TRIAL
            ATTORNEY AND ALSO MISADVISED ON [THE] RECORD
            OF HIS TRUE SENTENCING EXPOSURE, AND BY
            DEVISING A REMEDY THAT IMPOSED A SENTENCE
            THREE-TIME[S] GREATER THAN THE PLEA OFFER
            THEREFORE THIS MATTER SHOULD BE REMANDED FOR
            THE ORIGINAL PLEA TO BE REOFFERED.

We   conclude    the   PCR   court   correctly    denied   defendant's     PCR

petition.    Inasmuch as the petition was denied, the court had no

authority   to   resentence    defendant.        We   therefore   vacate   the

judgment of conviction (JOC) the PCR judge entered and remand this

case for re-entry of the original JOC.

                                      2                               A-0650-16T1
     We need not set forth the long procedural history of this

case.     It suffices to say defendant was convicted by a jury on

February 10, 2000, of first-degree felony murder, 
N.J.S.A. 2C:11-

3(a)(3), and other charges relating to that crime.         He received

an extended-term sentence of life imprisonment without parole.

After our remand from the Excessive Sentence Oral Argument calendar

for consideration of gap-time credits, we subsequently affirmed

his convictions,1 State v. Thompson, No. A-1745-00 (App. Div. Dec.

4, 2003), certif. denied, 
179 N.J. 373, cert. denied, 
543 U.S. 888

(2004).    Defendant's first PCR application was denied in October

2011; we affirmed that denial, State v. Thompson, No. A-3528-08

(App. Div. Feb. 15, 2011), certif. denied, 
207 N.J. 35 (2011).

Defendant thereafter commenced a § 22542 action in the United

States District Court alleging, in part, that he was unaware of

his sentencing exposure to life without parole at the time he

rejected the State's plea offer.       The District Court judge entered

a stay of proceedings pending the filing of a second PCR regarding

the sentencing exposure issue.     Thompson v. Warren, No. 11-7164,


1
  We, again, remanded the case to effect the merger of certain
offenses. Defendant's sentence on the felony murder conviction
remained unchanged.
2
  28 U.S.C. § 2254(a) (authorizing a federal district court to
"entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court"
on the grounds of a constitutional violation).

                                   3                            A-0650-16T1
2
015 U.S. Dist. LEXIS 1207 (D.N.J. Jan. 7, 2015).              That PCR was

filed on February 25, 2015.

      Our review of an order granting or denying PCR involves

consideration of mixed questions of fact and law. State v. Harris,


181 N.J. 391, 415-16 (2004).         We defer "to a PCR court's factual

findings based on its review of live witness testimony" and will

uphold   findings     that   are   "supported      by   sufficient   credible

evidence in the record."      State v. Nash, 
212 N.J. 518, 540 (2013).

However, "we need not defer to a PCR court's interpretation of the

law," which we review de novo.        Id. at 540-41.

      The PCR judge conducted an evidentiary hearing, reviewed the

transcript of the pre-trial conference, and concluded

           the defendant was not properly advised of what
           his exposure was had he been convicted after
           trial.    He was advised by the [pre-trial
           conference court] his sentence would be at
           least a life sentence with thirty years
           without parole, when in all actuality his
           exposure with him being extended term eligible
           was a life do life sentence.

The judge found trial counsel's failure to discuss with defendant

his   extended-term    eligibility    prior   to    his   conviction    proved

counsel met the first Fritz-Strickland3 prong.




3
  State v. Fritz, 
105 N.J. 42 (1987); Strickland v. Washington,

466 U.S. 668 (1984).

                                      4                                A-0650-16T1
     The   judge,   however,   carefully   considered   the   pre-trial

conference transcript; medical records; a photograph proffered by

defendant; letters from counsel; and defendant's testimony at the

evidentiary hearing, and determined defendant's medical condition

at the time of the pre-trial conference did not cause defendant

to reject the State's plea offer.      The judge expounded:

           [I]n watching [defendant's] testimony, which
           I don't find totally credible at all, I note
           that when he was presented with the question
           as to whether or not he would have accepted .
           . . the plea, he hesitated and he dropped his
           head and he [said] he would have accepted the
           plea in a heartbeat. And I'm not convinced
           of that.

She concluded defendant failed to meet his burden of establishing

that there was "a reasonable probability that but for [trial

counsel's misadvice] regarding [defendant's] sentence exposure he

would have accepted the plea offer."        The record supports her

well-reasoned decision denying the PCR petition.

     Defendant's PCR petition was the only application before the

PCR court and the denial of that application should have ended the

matter.    The judge, after the PCR denial, despite the agreement

by the State, was without authority to resentence defendant.

     Even if the petition was granted,

           the best method of vindication and the fairest
           both to the State and to defendant, would be
           to return defendant to the position he was in
           prior to the plea offer. The State would then

                                   5                            A-0650-16T1
          have the option of renegotiating a plea, and
          if it chose not to or if defendant rejected
          any offer made, he would then have the right
          to a new trial.

          [State v. Taccetta, 
351 N.J. Super. 196, 201
          (App. Div. 2002).]

We therefore vacate the JOC entered by the PCR judge, and remand

for entry of a JOC consistent with the originally imposed sentence.

     Affirmed in part, reversed in part.




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