December 26, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE CASTRO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-06-9290.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Skillman and Winkelstein.
In June 2000, defendant was indicted for armed robbery, in violation of N.J.S.A. 2C:15-1, and various other offenses. On November 1, 2000, defendant entered into a plea bargain under which he agreed to plead guilty to the armed robbery charge, and the State agreed to recommend a twelve-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismiss the other charges. In entering into this plea bargain, defendant executed the "Supplemental Plea Form for No Early Release Act Cases," which includes the following questions, to which defendant responded "Yes":
3. Do you understand that because you have plead guilty to these charges the court must impose a 5 year term of parole supervision and that term will begin as soon as you complete the sentence of incarceration?
4. Do you understand that if you violate the conditions of your parole supervision that your parole may be revoked and you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed?
The trial court sentenced defendant in accordance with the plea bargain to a twelve-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by NERA. The court also imposed the five-year term of parole supervision mandated by NERA. See N.J.S.A. 2C:43-7.2c.
Defendant filed an appeal from the judgment of conviction, which we heard on an excess sentence calendar. See R. 2:9-11. Defendant's primary argument in that appeal was that he should be afforded an opportunity to withdraw his plea because he was not adequately informed of the consequences of the extended period of parole supervision provided under NERA. In rejecting this argument, we noted that defendant had executed the NERA Supplemental Plea Form and concluded:
Although it would have been preferable if the trial court had also orally explained the consequences of defendant's plea to him on the record, we must assume in the absence of any evidence to the contrary that defendant read and understood this clear written explanation of the consequences of his plea. Therefore, we conclude that the NERA supplemental plea form adequately informed defendant of the consequences of his plea, and that he is not entitled to the opportunity to withdraw that plea.
However, in the order affirming defendant's conviction entered on January 10, 2002, we also stated:
[W]e do not foreclose defendant from moving before the trial court to withdraw [his] plea based on a particularized showing that [he] was unaware of all the penal consequences of [his] plea notwithstanding the execution of the NERA supplemental plea form[.]
The Supreme Court denied defendant's petition for certification. State v. Castro, 172 N.J. 178 (2002). In April 2004, defendant filed a motion to withdraw his guilty plea. On October 15, 2004, the trial court denied the motion. Defendant did not appeal from that denial.
On November 23, 2005, defendant filed a petition for post- conviction relief. Defendant's primary argument in support of the petition was that his trial counsel provided him with ineffective assistance in failing to adequately explain the consequences of the five-year period of parole supervision mandated by NERA. Defendant claimed that he should be allowed to withdraw his plea based on this ineffective assistance. The trial court denied defendant's petition by an oral opinion delivered on August 25, 2006.
On appeal from the denial of his petition, defendant presents the following argument:
THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON THE PLEA COUNSEL'S FAILURE TO EXPLAIN THE PAROLE SUPERVISION PROVISIONS OF THE PLEA AGREEMENT, THUS PREJUDICING THE DEFENDANT'S DECISION TO PLEAD AND HIS CONSTITUTIONAL RIGHT TO A TRIAL.
We reject this argument substantially for the reasons set forth in the trial court's August 25, 2006 oral opinion. We also note that defendant did not allege in his verified petition that he had no understanding of the five-year period of parole supervision or that any lack of such understanding was material to his decision to accept the State's plea offer. Nor did defendant allege that he was innocent of the armed robbery.
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