On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-02-0145-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 5, 2007
Before Judges Cuff and Lintner.
Following his plea of guilty to second degree aggravated assault, defendant John G. DeNoia was sentenced to a five-year term of imprisonment subject to the No Early Release Act (NERA).*fn1
He appeals the denial of his petition for post-conviction relief, which was founded on a claim of ineffective assistance of trial counsel. Defendant has been released from custody.
On appeal, defendant raises the following arguments:
POINT I: THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF; DEFENSE COUNSEL WAS INEFFECTIVE AND DEFENDANT-APPELLANT WAS PREJUDICED THEREBY. IN THE ALTERNATIVE, THE COURT SHOULD HAVE GRANTED DEFENDANT-APPELLANT AN EVIDENTIARY HEARING ON THIS ISSUE.
POINT II: THE DEFENDANT-APPELLANT'S PLEA WAS NOT ENTERED KNOWINGLY; THEREFORE THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION TO WITHDRAW HIS PLEA OF GUILTY.
Defendant's petition for post-conviction relief is based on an alleged misrepresentation by his attorney that induced defendant to plead guilty. Defendant contends that counsel informed defendant that the victim would not seek damages in a civil action if defendant plead guilty to a NERA offense. Second, defendant asserts that counsel was ineffective because this agreement was not memorialized on the record at the time of the plea. Defendant further claims that counsel's omission caused prejudice because he was precluded from advancing his contention that he acted in self-defense at the time of the assault.
The judge denied the petition for post-conviction relief. In his oral opinion, the judge noted that he would have rejected any plea agreement that contained a waiver of civil remedies by the victim. Furthermore, defendant did not reveal this aspect of the plea agreement when he had an opportunity to do so at the time he entered his guilty plea. Due to this omission, the judge held that defendant failed to establish a prima facie case of ineffective assistance of counsel. He also held that potential civil liability is a collateral consequence of a guilty plea that need not be disclosed for a guilty plea to be considered knowing and voluntary. Finally, the judge held that there was no showing that defendant suffered any prejudice by counsel's failure to disclose the victim's agreement not to pursue a civil remedy.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for post-conviction relief:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution ...