NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals a July 31, 2012 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.
On October 10, 2003, a jury found defendant guilty on all charges in Indictment 02-12-3016, which were first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(count two); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(count three). On December 3, 2003, the trial court sentenced defendant to an aggregate sentence of twelve years imprisonment, with an eighty-five percent period of parole ineligibility.
On November 29, 2004, a grand jury returned Indictment 04-11-2249, in which defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); and third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count four).
On December 15, 2004, a grand jury returned Indictment 04-12-2426, charging defendant with third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and 2C:20-3(a) (count one), and third-degree theft, N.J.S.A. 2C:20-3(a) (count two).
On August 4, 2005, defendant pled guilty to armed robbery (count one of Indictment 04-11-2249) and theft (count two of Indictment 04-12-2426). Pursuant to the plea agreement, the State agreed to dismiss the remaining counts in each Indictment and recommend that defendant receive a twelve-year term on the armed robbery charge, with an eighty-five percent period of parole ineligibility, and a flat four-year term on the theft charge. The State also agreed to recommend that both sentences run concurrently, as well as to the sentence defendant was then serving on Indictment 02-12-3016.
At the plea hearing, the following exchange took place between defendant and the court:
THE COURT: Now do you understand that that 4 year sentence will be concurrent to the 12 year sentence and concurrent to you having another sentence that you're presently serving?
DEFENDANT: Correct.
THE COURT: Where were you sentenced on the other sentence?
DEFENDANT: I was sentenced out of Bergen County.
THE COURT: How much time do you have to do on that matter?
DEFENDANT: 12 with 85.
THE COURT: You already have a 12 with 85?
DEFENDANT: Yes.
THE COURT: You're going to get another 12 with 85.
DEFENDANT: Yes.
THE COURT: But it's concurrent, so it's sort of like you don't get anything for it.
PROSECUTOR: Not exactly.
THE COURT: Well, if you have a 12 with 85, you have a 12 with 85, you don't have a 24, right, with 85 and 85. What do you have, you have one 12 with 85?
PROSECUTOR: They're different times, your Honor.
THE COURT: All right, how much time does he have to do on the other one?
PROSECUTOR: I'm not sure exactly.
DEFENSE COUNSEL: He was arrested in October `03 and sentenced in December `03 by Judge Venezia.
THE COURT: Okay, all right. So you understand that this is concurrent but not coterminous, so you still have 12 to do on this sentence?
DEFENDANT: Right.
THE COURT: Do you understand that?
DEFENDANT: Yes.
THE COURT: All right.
...
THE COURT: You've been through with it already but I have to understand it in this case. Let me make sure you understand this other issue: You're already doing a 12 with 85. Let's say you serve a year and a half of it, right?
DEFENDANT: Okay.
THE COURT: So now this one is starting, you still have to do 85 percent on this 12 years?
DEFENDANT: Correct.
THE COURT: All right, so they're run together until that one is over, after 85 percent of 12 years, so you have maybe another year and half, whatever before you become eligible for parole here because you have to do 85 percent on the 12 years on this charge, starting today. ...
DEFENDANT: Okay.
THE COURT: Okay?
DEFENDANT: Yes.
THE COURT: All right.
[Emphasis supplied.]
On September 23, 2005, defendant was sentenced in accordance with the plea agreement.
Defendant appealed the conviction on Indictment 02-12-3016 and on November 29, 2006, we reversed that conviction and remanded the matter for a new trial. State v. Pereira, No. A-2590-04T4 (App. Div. November 29, 2006). The State determined it would not retry the matter and the indictment was dismissed on January 26, 2010. Meanwhile, because of the reversal of the conviction on Indictment 02-12-3016, defendant moved to withdraw the guilty pleas he entered on Indictments 04-11-2449 and 04-12-2426.
In his motion defendant certified that the primary reason he pled guilty to these two Indictments were that he was
already serving a twelve-year State prison sentence with NERA and that the subsequent sentences would run concurrent to that sentence. ... I would not have negotiated the same plea agreement on [these two indictments] if those matters were to be considered separately on their merits without the substantial factor of another sentence already being served.
The trial court granted defendant's motion and vacated both guilty pleas. On April 30, 2009, we reversed that decision and reinstated both pleas. State v. Pereira, No. A-3330-07 (App. Div. April 30, 2009). We found the reversal of the conviction on Indictment 02-12-3016 did not affect the plea agreement made on the two subsequent indictments, as the plea agreement provided that the term would run concurrently with the term imposed for the first indictment; there was, however, no agreement the terms would run coterminously. Id. at 3-4. Therefore, defendant was obligated to serve the twelve-year term, subject to an eighty-five percent period of parole ineligibility, on Indictments 04-11-2249 and 04-12-2426, regardless of the term on 02-12-3016. Id. at 7-8.
On March 14, 2012, defendant filed a PCR petition. Among other things, defendant argued he was denied the effective assistance of counsel, because plea counsel failed to advise that he would not be able to withdraw the pleas entered on Indictments 04-11-2249 and 04-12-2426 in the event the conviction on Indictment 02-12-3016 were reversed. The PCR court found defendant's claim procedurally barred under R. 3:22-5, reasoning there had been a prior adjudication of essentially the same claim when the trial court granted defendant's motion to vacate his guilty pleas on Indictments 04-11-2249 and 04-12-2426.
Defendant also claimed he was entitled to gap-time credit as a result of the first indictment being dismissed. The trial court did not agree.
Defendant appeals, arguing:
POINT I — THE COURT BELOW ERRED IN DENYING DEFENDANT'S PCR PETITION WITHOUT GRANTING HIM AN EVIDENTIARY HEARING.
POINT II — THE PROCEDURAL BAR TO POST-CONVICTION RELIEF FOUND BY THE COURT DID NOT APPLY.
POINT III — THE FAILURE OF THE TRIAL COURT TO AWARD DEFENDANT GAP-TIME CREDIT RENDERED HIS SENTENCE ILLEGAL.
After considering the record and the briefs, we conclude defendant's arguments on the issue of ineffective assistance of counsel are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987).
The record is clear that when defendant pled guilty on Indictments 04-11-2249 and 04-12-2426, the trial court advised him the sentence would be concurrent with and not coterminous to the sentence on Indictment 02-12-3016. The trial court explained that the two sentences would "run together until [the first sentence] is over, after 85 percent of 12 years[.]" Then, approximately eighteen months later, defendant would be eligible for parole on the subsequent sentence, having completed "85 percent on the 12 years on this charge, starting today." Defendant acknowledged, under oath, that he understood the court. Defendant therefore cannot show the second prong of the Strickland test, that he was prejudiced as a result of counsel's errors.
In defendant's last Point he argues the trial court should have awarded him credit for gap-time from December 3, 2003, the date defendant was sentenced on Indictment 02-12-3016, to September 23, 2005, the date he was sentenced on the other two Indictments. The States agrees. Accordingly, we remand this matter to the trial court for entry of amended judgments of conviction on Indictments 04-11-2249 and 04-12-2426 awarding defendant gap-time credit from December 3, 2003 to September 23, 2005.
Affirmed in part, reversed in part and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
