At issue in this post-conviction relief matter is whether defendant's "open" guilty plea during trial was premised on his attorney's "guarantee" that the judge would sentence him to a time-served sentence pursuant to an alleged agreement reached in chambers. Citing the transcript of the plea hearing to the contrary, the PCR judge – who was not the trial judge – denied defendant's petition. Thereafter, PCR counsel moved for reconsideration based on the certification of plea counsel, which supported defendant's assertions, but was acquired beyond the twenty-day time limitation prescribed by Rule 1:7-4(b) and Rule4:49-2. The PCR judge denied the motion as untimely and did not reach the merits of defendant's motion.
Because plea counsel's certification was belatedly provided to the PCR judge, this court affirms the denial of defendant's petition and his motion for reconsideration. However, the court concludes PCR counsel provided ineffective assistance following receipt of plea counsel's certification.
Although PCR counsel's obligation to defendant was discharged upon filing an appeal with this court, PCR counsel filed an untimely reconsideration motion. PCR counsel had other available options that would have led to a timely-filed second PCR petition under Rule 3:22-12(a)(2)(B). PCR counsel could have sought authority from the Office of the Public Defender to file a second PCR petition on defendant's behalf, or he could have provided plea counsel's certification to defendant to file a pro se second petition.
Because the court concludes PCR counsel's representation was deficient, defendant is entitled to a new PCR proceeding. Because defendant's assertions against plea counsel are now supported by the sworn statements of that same attorney, the court concludes defendant's claims cannot be resolved on the existing record.
The court therefore affirms both orders under review. In light of PCR counsel's ineffectiveness, however, the court remands the matter for an evidentiary hearing.
