Before Judges Pressler, Ciancia and Coleman.*fn1 On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 97-09-00942-I and 98-04-00474-I.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from the denial of post-conviction relief without an evidentiary hearing. Because we are persuaded that a prima facie claim for relief was shown, we remand for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-464 (1992).
Defendant Ronald Jamgochian entered guilty pleas to second degree sexual assault, N.J.S.A. 2C:14-2c(1), and second-degree possession of a weapon by certain persons not to have weapons, N.J.S.A. 2C:39-7. In accordance with the plea agreement, defendant was sentenced as a third-degree offender. A four-year term of imprisonment was imposed for each offense, the sentences to run concurrently. Defendant took no direct appeal. He was released from prison in October 2001.
Defendant's petition for post-conviction relief centers primarily on the restrictions imposed upon him because he is subject to community supervision for life pursuant to the provisions of Megan's Law. See N.J.S.A. 2C:43-6.4.
It is defendant's position that he needs to travel outside the United States for business, health, and family reasons. He contends he specifically inquired of his attorney, before agreeing to plead guilty, as to whether he would be free to travel once his prison term was served. His attorney allegedly "made it quite clear" that defendant would not be subject to any travel limitations as long as the Avenel evaluation did not find him to be a threat to himself or society. Defendant further stated in his petition that his attorney conferred with the trial judge and reported back to defendant"that the judge said nothing that he, the judge, would sentence him to do, would prevent him from traveling or leaving the state, after his sentence was served." A certification from the attorney who represented defendant at the time of the plea gives this version of events:
I took this proposal to my client who was waiting outside of chambers with his wife and family. The Defendant had a question pertaining to section 4 of the supplemental Plea Form. He asked about Community Supervision; specifically, whether it would in any way restrict his traveling ability to pursue health, business and personal needs. I told him I was not aware of any travel restrictions but would seek the answer from the Court. He stated that it would be hard for him to accept this plea, but that he would agree if he could travel outside New Jersey after he served his jail sentence.
I entered [the judge's] chambers again and inquired what Community Supervision would entail; and if there were any specific travel restrictions. To the best of my recollection, [the judge]*fn2 responded with words to the effect that:"I don't know what that is, but I am not imposing anything here today that will stop him from traveling once he has completed his sentence. He can leave the country or do whatever. He will have to register once per year as long as he is here though."
I went back to my client and explained the answers as they were given to me by the Court. My client accepted the plea with the understanding that the consequences of his plea would in no way prohibit him from traveling after he had completed his jail time. If he had known that he would be on parole for life, unable to leave the state and freely travel, there is no doubt in my mind that he would have chosen to try the case. So far as I know, he was sentenced while believing that he would not be subject to any restrictions on his freedom to leave the state or the country after his sentence was served. I have known this client for many years. I believe he would not have pleaded guilty if he knew he could not leave the State of New Jersey after serving his jail sentence. Looking back, I do not believe that anyone understood the ramifications of Community Supervision until much later. None of us had any idea then a defendant could not leave the State after completing the service of his sentence.
It is clear that a guilty plea may be accepted only if the defendant understands the consequences of the plea. R. 3:9-2. We believe it equally clear, and the State does not argue to the contrary, that community supervision for life imposed pursuant to N.J.S.A. 2C:43-6.4 is a penal and not a collateral consequence of the sentence. See generally State v. Burford, 163 N.J. 16, 21-22 (2000); State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd o.b., 107 N.J. 603 (1987); State v. Kovack, 91 N.J. 476, 483 (1982)."Persons serving a special sentence of community supervision shall be supervised as if on parole and subject to conditions appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4b. Indeed, the regulations of the Department of Corrections setting forth the available terms and conditions of community supervision for life are virtually the mirror image of the regulations specifying the terms and conditions of parole. Compare respectively N.J.A.C. 10A:71-6.11 with N.J.A.C. 10A:71-6.4.
The State's contention in the present case that defendant should have applied to the parole authorities for relief from the travel restrictions rather than filing a petition for post-conviction relief is incorrect. Defendant seeks to withdraw his guilty plea to the sexual assault conviction because he was allegedly misinformed as to the penal consequences. He also alleges the concomitant claim of ineffective assistance of counsel in failing to properly advise him as to the restrictions encompassed within the ambit of community supervision for life.*fn3
In our view, defendant's legal theory and procedural posture are both correct. As to the former, a guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid. State v. Barboza, 115 N.J. 415, 420-421 (1989); R. 3:9-2. Even misinformation about a collateral consequence may vitiate a guilty plea if the consequence is a material element of the plea. State v. Howard, 110 N.J. 113, 122 (1988); State v. Garcia, 320 N.J. Super. 332, 339-341 (App. Div. 1999).
As to the latter, in State v. Williams, 342 N.J. Super. 83 (App. Div. 2001), we addressed a claim analogous to that now being raised by defendant and rejected it on the merits, but we found no defect in the issue being raised by way of post-conviction relief. A defendant may well have the opportunity to negotiate certain terms and conditions of supervision with parole personnel, but that opportunity does not ...