Opinion
DOCKET NO. A-3377-11T3
02-12-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT HATCHER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0004.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Robert Hatcher appeals the Law Division's October 17, 2011 order denying his petition for post-conviction relief (PCR).
In May 2005, Hatcher pled guilty to second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; two counts of first-degree robbery, N.J.S.A. 2C:15-1; and third-degree unlawful weapon possession, N.J.S.A. 2C:39-5. He received an aggregate sentence of incarceration for ten years, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Although the judge advised Hatcher that he had a right to appeal the sentence, no direct appeal was filed.
In August 2009, Hatcher filed a motion to correct an illegal sentence. On July 7, 2010, while the motion was pending, he filed his PCR petition. The motion to correct an illegal sentence was denied on July 23. Hatcher was assigned PCR counsel, who filed a supplemental brief in support of his PCR petition. The petition was dismissed on October 17, 2011, in an oral decision delivered following oral argument. This appeal followed.
Hatcher raises the following issue on appeal:
THE COURT ERRED IN DENYING DEFENDANT'S POST CONVICTION RELIEF PETITION WITHOUT AN EVIDENTIARY HEARING ON DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.In essence, Hatcher argues that his trial attorney was constitutionally ineffective because he did not consult with Hatcher regarding his right to appeal the sentence even though the attorney knew that Hatcher thought the sentence was too long.
Having reviewed Hatcher's arguments in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Hatcher received a ten-year sentence, which is the shortest possible sentence for a first-degree offense. N.J.S.A. 2C:43-6(a)(1). All of the other sentences were concurrent. In addition, the base sentence was the one called for by the plea bargain. See State v. Soto, 385 N.J. Super. 247, 255 (App. Div.) (a defendant accepting a plea offer cannot subsequently argue that the base sentence is excessive), certif. denied, 188 N.J. 491 (2006). Consequently, any appeal of the sentence would have been unsuccessful.
The petition was appropriately dismissed because Hatcher could not satisfy the second prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), which requires a defendant to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION