09-21-06 A-2043-02T1;A-5014-02T1
In a consolidated opinion, we affirmed the denial of postconviction
relief petitions in two counties, addressing two
issues. First, we held that State v. Franklin, applying
Apprendi to second-offender Graves Act mandatory extended-term
sentences, does not apply retroactively in the context of this
collateral review. Any broadening of Franklin's pipeline
retroactivity can come only from the Supreme Court.
Second, we addressed defendant's ineffective-assistance
argument, namely, that he was prejudiced by the failure of
counsel in both counties to move, pursuant to Rule 3:25A-1, for
consolidation of the pending indictments for purposes of plea
negotiations and sentencing. We concluded that counsel in such
circumstances should move for consolidation, and the failure to
do so established the first prong of defendant's ineffective assistance
claims.
We concluded, however, that defendant could not establish
the second prong of an ineffective-assistance claim. Defendant
was charged with Graves Act crimes in each county, and he
contended that if he had been sentenced in a single proceeding,
he would have avoided a second-offender extended term. For
purposes of this appeal, we assumed, by analogy to State v.
Owens (but without so deciding), that defendant's premise was
correct. But because defendant rejected a plea offer that was
as favorable as any he could have expected in a consolidated
plea offer, he could not prove that counsels' failures likely
made a difference.
