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State v. Welch

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDREW WELCH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-04-0438.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 21, 2008

Before Judges Graves and Yannotti.

Defendant Andrew Welch appeals from an order entered on September 21, 2006, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was charged under Ocean County Indictment No. 03-04-0438 with robbery, second degree, N.J.S.A. 2C:15-1 (count one); robbery, second degree, N.J.S.A. 2C:15-1 (count two); eluding, second degree N.J.S.A. 2C:29-2b (count three); and resisting arrest, third degree N.J.S.A. 2C:29-2a (count four). On June 2, 2003, defendant pled guilty to counts one, two and three of the indictment. The State agreed to the dismissal of count four and certain other charges that were pending at the time.

At the plea hearing, the assistant prosecutor informed the court that the State would be seeking "a total sentence of [seventeen] years imprisonment, [ten] years concurrent on the robbery with a consecutive seven on the eluding." The assistant prosecutor stated that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied to the robbery counts. The assistant prosecutor also stated that defendant had reserved the right to seek concurrent sentences on all charges and would be asking the court to impose an eight-year term, "subject to the 85 per cent law."

Defendant was asked whether he signed the supplemental plea form for NERA cases and admitted that he had. He was asked whether the answers to the questions on that form were his answers. He said that they were his answers. Defendant also said that he understood the questions.

Defendant was sentenced on June 25, 2003. The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors.

The judge sentenced defendant to an eight-year term on count one, with a period of parole ineligibility as prescribed by NERA. The judge imposed the same sentence on count two, and ordered that it be served concurrent to the sentence on count one. The judge imposed a concurrent eight-year sentence on count three. The judge also imposed appropriate fees and assessments, and ordered the suspension of defendant's driving privileges for one year.

Defendant did not file a notice of appeal from the judgment of conviction entered on July 25, 2003. However, defendant filed a motion dated January 25, 2005, to correct what he claimed was an illegal sentence. Defendant argued that the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), rendered his sentence illegal because the aggravating factors relied upon by the judge were not proven to a jury. The trial court denied the motion on April 15, 2005. Defendant did not appeal from that determination.

On September 26, 2005, defendant filed a pro se verified petition for PCR. PCR counsel was assigned and defendant filed an amended PCR petition on May 15, 2006. The trial court considered the petition on September 15, 2006.

At the hearing on the PCR petition, the judge noted that the sentences imposed were the sentences defendant had requested. The judge asked whether defendant was seeking to withdraw from his plea and have the matter returned to the trial calendar. The judge noted that defendant could be potentially exposed to a sentence of up to seventeen years of incarceration. In response, defendant stated:

First of all, I would definitely not like to vacate my original sentence. I guess I was under the misconception of the purpose of a [petition for post-conviction] relief. There [is] no way I'm looking to vacate [the sentence] and turn that over to a trial date for resentencing. That . . . is not what I was looking for. I apologize [to] the courts if that's what it appears to be.

Defendant said that he "was under the impression that [he] could get . . . relief under the presumptive term." Defendant informed the court that he was arguing that his sentences violated the principles enunciated in Blakely. He argued that he was entitled to relief under State v. Natale, 184 N.J. 458 (2005), because the sentences imposed were longer than the presumptive terms for the offenses, and the sentences were based on aggravating factors not proven to a jury.

The judge placed his decision on the record. He concluded that the sentence was not illegal and defendant's application for reconsideration of the sentence was out of time. The court also rejected defendant's contention that he had not been fully informed of the potential penal consequences of his plea. The judge noted that, when he entered his plea, defendant had been asked whether he understood the questions on the NERA supplemental plea form, which defendant had signed. Defendant had stated on the record that he understood the questions on the forms. The judge noted that defendant's "declarations in open court carry a strong presumption." The judge found that defendant's plea was knowing and voluntary. The judge entered an order on September 21, 2006, denying PCR. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I:

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE THE EVIDENCE AT DEFENDANT'S PLEA COLLOQUY CLEARLY DISCLOSED THAT DEFENDANT FAILED TO ENTER THE PLEA WITH FULL KNOWLEDGE OF THE PENAL CONSEQUENCES OF THE PLEA.

A. THE POST-CONVICTION [RELIEF] COURT ERRED IN DENYING RELIEF WHERE PETITIONER-APPELLANT CLEARLY PROVED THAT HE WAS UNAWARE OF THE CONSEQUENCES OF THE PLEA RELATING TO THE IMPOSITION OF A NO EARLY RELEASE ACT SENTENCE, INCLUDING THE SPECIALIZED PAROLE PROVISIONS, THEREBY RENDERING THE PLEA INVALID.

B. PETITIONER-APPELLANT'S PLEA SHOULD BE VACATED SINCE TRIAL COUNSEL CLEARLY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY USING AN INAPPROPRIATE FORM TO ADVISE DEFENDANT OF THE NO EARLY RELEASE ACT IMPLICATIONS OF HIS PLEA.

POINT II:

THE MATTER SHOULD BE REVERSED AND REMANDED SO THAT A FULL TESTIMONIAL HEARING MAY BE CONDUCTED RELATING TO THE ISSUE OF WHETHER OR NOT DEFENDANT WAS PROPERLY ADVISED BY TRIAL COUNSEL AS TO THE APPLICABILITY OF THE NO EARLY RELEASE ACT TO HIS SENTENCE.

POINT III:

THE CLAIMS RAISED BY DEFENDANT IN THE WITHIN PETITION WERE NOT LITIGATED ON DIRECT APPEAL AND FAILURE TO RAISE ALL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL DID NOT PROCEDURALLY BAR [THE] CLAIM IN [THE] POST-CONVICTION [RELIEF] PROCEEDING.

We reject these arguments and affirm.

Defendant argues that, when he entered his plea, he was not fully informed of the consequences that would result from the application of NERA to his sentences. As the trial court found, the plea forms and the record at the plea hearing establish that defendant was well aware that NERA applied to the robbery convictions.

Indeed, the supplemental plea form for NERA cases, which defendant signed on June 2, 2003, states that he would be required to serve eighty-five percent of his sentence before he would be eligible for parole and he would be subject to a three-year term of parole supervision that would begin when defendant completed his "sentence of incarceration[.]" The form also indicates that, if defendant violated the conditions of parole supervision, he could be required to serve "all or any portion of the remaining period of parole supervision, even if [he had] completed the term of imprisonment previously imposed[.]"

Defendant argues that he was misinformed as to the NERA consequences of his plea because he was given an out-dated NERA plea form. The form set forth certain questions and stated that, "[t]he following questions need to be answered only if you are pleading guilty to a first or second degree violent crime that occurred between June 9, 1997 and June 29, 2001." The form defined the term "violent crime."

The supplemental plea form that defendant executed reflected the version of NERA that was in effect between June 9, 1997 and June 29, 2001. That version of NERA required that a person convicted of a first- or second-degree "violent crime" serve eighty-five percent of the sentence. State v. Parolin, 171 N.J. 223, 230 (2002). NERA was amended effective on June 9, 2001, to specifically enumerate the first- and second-degree offenses to which NERA applies. Id. at 232. One of the enumerated offenses is "N.J.S.A. 2C:15-1, robbery." Id. at 233; see N.J.S.A. 2C:43-7.2(d)(9).

The robberies to which defendant pled guilty occurred on October 31, 2002 and November 1, 2002. Defendant argues that it was his understanding that he would not be subject to NERA because he did not believe that his offenses were "violent offenses" as that term was defined in the supplemental plea form that he signed. However, the plea form and the supplemental plea form for NERA cases makes clear that defendant was informed that his robbery convictions were subject to NERA and defendant was fully informed of NERA's requirements. Therefore, the trial court correctly found that defendant's plea was entered knowingly and voluntarily.

Defendant additionally argues that he was denied the effective assistance of counsel because his trial attorney did not advise him of the applicability of NERA to his sentence. A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

To prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that he was prejudiced by his attorney's errors. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Here, the record shows that defendant was fully informed that NERA applied to his robbery convictions and he was advised concerning the NERA consequences of his plea. Therefore, defendant's contention that he was denied the effective assistance of counsel when he entered his plea is entirely without merit.

We add that, although defendant challenged his sentence in his PCR petition, he does not raise any issue regarding his sentence on this appeal. We note, however, that defendant's motion to correct his allegedly illegal sentence was denied by the trial court on April 15, 2005. Defendant did not appeal that decision. The adjudication of defendant's motion barred defendant from raising any issue in the PCR petition that was previously adjudicated on the merits. R. 3:22-5.

In any event, wholly aside from that procedural bar, defendant is not entitled to relief under Natale. When that case was decided, defendant did not have a direct appeal pending, and he never raised any challenge to his sentence on Blakely grounds during his trial. Natale, supra, 184 N.J. at 494.

Affirmed.

20080801

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