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State v. Fitzpatrick

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 27, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
REGINALD FITZPATRICK, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-01-0021.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 11, 2007

Before Judges Fuentes and Grall.

On September 14, 2001, defendant Reginald Fitzpatrick pled guilty to one count of aggravated manslaughter, N.J.S.A. 2C:11- 4(a). Pursuant to the negotiated plea agreement,*fn1 the State agreed to seek a sentence not to exceed a term of twenty years, subject to an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On October 26, 2001, the trial court sentenced defendant to a term of sixteen years, with an 85% period of parole ineligibility pursuant to NERA. Thereafter, defendant filed a direct appeal and appeared, through counsel, at our excessive sentencing calendar on June 5, 2003. Defense counsel specifically raised the following two issues before the panel:

[Defendant] is asking for a remand under State v. Freundenberger, [358 N.J. Super. 162 (App. Div. 2003)], because the Court did not inform him of the full parole consequences of the NERA term and specifically that he could actually serve more time in prison than the sentence the Court imposed. He also asks the Court to consider reducing his sentence from 16 years to no more than 10 years.

The panel rejected this argument and affirmed the sentence imposed by the trial court. Thereafter, the Supreme Court denied defendant's petition for certification. State v. Fitzpatrick, 180 N.J. 458 (2004).

Defendant filed a post-conviction relief (PCR) petition on March 31, 2006. The trial court denied defendant's PCR petition in an order dated April 11, 2006. Defendant now appeals raising the following arguments.

POINT I

THE WRITTEN PLEA AGREEMENT AS UNDERSTOOD BY THE DEFENDANT INVOLVED A 20 YEAR CAP ON THE SENTENCE. THE FAILURE OF PRIOR TRIAL AND APPELLATE COUNSEL TO ARGUE THAT THAT AGREEMENT SHOULD HAVE BEEN SPECIFICALLY ENFORCED WAS NOT COMPETENT.

POINT II

COUNSEL MANIPULATED HIS CLIENT INTO PLEADING GUILTY BY MISLEADING DEFENDANT REGARDING THE STATE'S PLEA OFFER.

POINT III

DEFENDANT'S EXPOSURE TO JAIL TIME EXCEEDED THE CAPPED PERIOD OF CONFINEMENT PURSUANT TO THE PLEA BARGAIN, THEREFORE, DEFENDANT'S PLEA BARGAIN WAS UNENFORCEABLE PURSUANT TO KOVACK.

POINT IV

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT V

REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS SET FORTH IN POINTS I THROUGHT IV.

After reviewing the record before us, and in light of prevailing legal standards, we affirm. As the following shows, the trial court addressed defendant directly at the plea hearing, and informed him of the material aspects of the plea agreement, including the NERA issues.

THE COURT: Is it your understanding that there's a plea agreement between yourself, your attorney and the State that at the time of sentencing, the State is going to be seeking a sentence of twenty years in state's prison?

DEFENDANT: Yes, sir.

THE COURT: Is it your understanding also that as part of that sentence, that you would be required, under the No Early Release Act, to serve 85 percent of that term before you could be considered eligible for parole?

DEFENDANT: Yes, sir.

THE COURT: And once you were paroled, you understand you would still have to serve a five-year term of parole supervision?

DEFENDANT: Yes, sir.

THE COURT: In that regard, I show you a supplemental plea form for No Early Release cases and ask, is that your signature on that form?

DEFENDANT: Yes, sir.

THE COURT: Are they your answers to those questions?

DEFENDANT: Yes, sir.

THE COURT: And did you understand all those questions?

DEFENDANT: Yes, sir.

The "Supplemental Plea Form for No Early Release Act Cases" referred to by the trial court in this exchange reflects that defendant answered "yes" to the following two specific questions.

Do you understand that because you have plead [sic] 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?

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?

We recognize that the better practice is for the judge presiding over the plea hearing to solicit from defendant a verbal, narrative confirmation of his understanding of the parole implication of a NERA sentence. Here, as the record shows, defendant was fully apprised of the penal consequences of his guilty plea, including the unique characteristics of a NERA sentence. Cf. State v. Johnson, 182 N.J. 232, 235 (2005).

In this light, any alleged errors committed by defense counsel were legally inconsequential because defendant was informed of all of the material aspects of the plea agreement.

See State v. Loftin, 191 N.J. 172, 198 (2007) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984)).

Defendant's PCR petition is also procedurally barred, because the salient issues raised therein were previously adjudicated by the appellate panel that heard and decided the direct appeal. R. 3:22-5; State v. Afanador, 151 N.J. 41, 51 (1997).

Affirmed.


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