NOT FOR PUBLICATION

PER CURIAM.

Defendant appeals from the February 18, 2010 order denying his motion for post conviction relief (PCR) on the merits. Defendant was indicted in Essex County, Indictment No. 95-06-2229, for two counts of carjacking, N.J.S.A. 2C:15-2 and 2C:2-6, and various other charges stemming from an April 18, 1995 armed carjacking of two people in Newark. On January 18, 1996, defendant was sentenced in federal court to 180 months in prison for an unrelated carjacking. After a hung jury, defendant pled guilty on June 3, 1996, to every count in Indictment 95-06-2229. Although the State made no plea agreement with defendant, the judge promised him a sentence of no more than fifteen years with a parole ineligibility of seven and one-half years to run concurrent to the federal sentence he was already serving. As defendant was unable to read, defense counsel read the plea form containing the judge's promise to defendant. The judge explained to defendant that if the sentence was any greater, defendant would have the right to withdraw his plea and proceed to a second trial. The judge imposed the maximum sentence under the agreement on June 21, 1996.

In spite of efforts by the sentencing judge and United States Attorney's Office, the federal sentencing judge recommended that defendant's federal sentence run consecutive to the state sentence. The Federal Bureau of Prisons complied with this recommendation. On April 14, 1999, defendant wrote a letter of complaint to the New Jersey sentencing judge, who responded on April 20, 1999, that he had imposed the agreed-upon sentence and defendant's "complaint is with the federal authorities." Defendant's subsequent federal appeals were denied. Allen v. Nash, CV-04-0449, February 8, 2006, Allen v. Nash, 266 F. App'x 779 (3d Cir.), cert. denied, 169 L.Ed. 319 (2007). Defendant filed a PCR on July 21, 2008, alleging his counsel was ineffective by not informing him that the judge's promise was not binding on the federal court or prison authorities. The PCR was denied on the merits.

In denying his PCR application, the trial judge noted that an evidentiary hearing was unnecessary because defendant's representations were accurate. The judge heard the application on the merits and determined that both he and defense counsel had done the best they could to effectuate the concurrent sentence imposed on defendant, but had been thwarted by the federal system. The judge indicated that he had no doubt defendant had already served his maximum New Jersey sentence, and thus no relief was available.

We agree with defendant that the violation of his plea agreement represents a manifest injustice and therefore grant the relief requested.

The legal principles governing our analysis of defendant's ineffective assistance of counsel claim are settled and well-known. To prevail on a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), the defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also United States v. Cronic, 466 U.S. 648, 653-58, 104 S.Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel).

A defendant claiming that his attorney was ineffective in his representation must first demonstrate that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A showing that the error had some conceivable effect on the outcome of the trial is insufficient to sustain such a claim. Rather, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 698. This two-pronged standard has been expressly adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987); State v. Cooper, 410 N.J.Super. 43, 58 (App. Div. 2009). Under this standard, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

In the context of plea agreements, the Strickland standard requires that a defendant show that "[1] counsel's assistance was not `within the range of competence demanded of attorneys in criminal cases'; and [2] `that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed. 2d 873 (1996). Counsel's failure to advise defendant of the serious consequences associated with a guilty plea has been found to constitute ineffective assistance of counsel, even where the attorney was unaware of the consequences. See Padilla v. Kentucky, 559 U.S. __, 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010); Nunez-Valdez, supra, 200 N.J. 129.

Notably, both trial counsel and the judge misinformed defendant as to the potential consequences of his pleading guilty to the indictment. Although their failure to address the possibility of consecutive sentences with defendant was not intentional, the error was of such magnitude as to deprive defendant of the opportunity to fully appreciate his decision to plead guilty. Under these circumstances, there is a reasonable probability that defendant would not have pled guilty absent this incorrect representation. See Nunez-Valdez, supra, 200 N.J. at 139.

Moreover, defendant sought timely relief from the judge, in which he stated that he would not have pled guilty if he knew his state sentence could potentially run consecutive to the federal sentence he was then serving. We agree that defendant's PCR application should have been heard on the merits in light of the judge's instruction that no relief was available in state court and directing defendant to appeal through the federal system. It would have been preferable for the judge to have treated defendant's letter as an initial PCR application and referred it to the Office of the Public Defender for representation. R. 3:22-6(a).

Rule 3:22-12 addresses the five-year time limitations for filing a PCR petition; however, the rule "is not rigid and monolithic." State v. Mitchell, 126 N.J. 565, 576 (1992). "When an illegal sentence is in question, no time limitations apply." Ibid. Moreover, "where the interests of justice so require," the Rule's time limitations may be relaxed. Ibid. (citing Rule 1:1-2).

Rule 3:22-12 also permits a court to review a PCR petition filed more than five years from the date of the judgment of conviction "if the petition alleges facts demonstrating that the delay was due to the defendant's excusable neglect." Id. at 576-77 (citing State v. Sloan, 226 N.J.Super. 605, 612 (App. Div.), certif. denied, 113 N.J. 647 (1988). If the petitioner does not allege facts sufficient to show excusable neglect, the Rule bars the claim. Ibid. (citations omitted). Under the facts alleged here, the strictures of Rule 3:22-12 should have been relaxed to allow the merits of defendant's petition to be heard.

We further agree with the judge that defendant has already served his maximum sentence under the plea agreement and may not gain any practical relief from the grant of his application to withdraw his guilty plea.

Regardless, we find it necessary to grant defendant's appeal because the interests of justice must be vindicated. A judge's promise regarding a plea agreement must be enforceable, or a defendant should be allowed to withdraw his plea.1

Reversed.