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State v. D.H.

August 7, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.H., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-11-4645.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 28, 2008

Before Judges Graves and Yannotti.

Defendant D.H. appeals from an order entered by Judge Donald S. Goldman on March 23, 2007, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Essex County Indictment No. 97-11-4645 with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts one through four); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count five). On September 21, 1999, defendant appeared before Judge Goldman and pled guilty to counts four and five. Defendant admitted that he digitally penetrated the vagina of his five-year-old-daughter. Defendant also admitted that, at the time, he was responsible for the child's care.

The State agreed to recommend that defendant be sentenced to a term of twelve years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge did not expressly mention "Megan's Law," N.J.S.A. 2C:7-1 to 7-21. However, the judge explained that defendant would be subject to registration and community notification under the law. The judge additionally stated that defendant would be subject to community supervision for life. The judge also explained that defendant could be subject to involuntary commitment following the expiration of his sentence.

Defense counsel conceded that NERA would apply to defendant's conviction for aggravated sexual assault. The judge explained that NERA requires that defendant serve eighty-five percent of his sentence. The judge further explained that defendant would be subject to an additional period of parole supervision that would begin after he completed his term of incarceration, and he could be required to serve any or all of that period of parole supervision if he violated the terms and conditions of parole.

The judge expressed some uncertainty as to whether NERA applied to the aggravated sexual assault conviction. The judge stated that, if he concluded that NERA did not apply, the plea would be vacated and the State could make a new plea offer. On March 27, 2000, the judge entered an order finding that NERA was inapplicable and vacated the guilty plea. The State filed a motion for leave to appeal from that order. The State's motion was denied on May 15, 2000.

Thereafter, defendant and the State negotiated a new plea agreement, which was placed on the record before Judge Goldman on July 20, 2000. Defendant agreed to supply additional facts that would support the application of NERA to the sentence, and the State agreed to recommend a ten-year sentence. Defendant provided the court with additional facts and defense counsel conceded that, based on those facts, NERA applied. The judge stated that gap time credits would not apply to the parole ineligibility period.

On count four, the judge sentenced defendant to ten years of imprisonment, with a period of parole ineligibility as prescribed by NERA, with an additional five-year period of parole supervision. The judge imposed a concurrent ten-year sentence on count five. The judge dismissed counts one, two and three, sentenced defendant to community supervision for life, ordered defendant to submit samples for DNA testing, and imposed certain fees and assessments. The judge ordered that the sentences be served concurrently with a sentence imposed on Union County Indictment No. 96-10-1304. The judge also granted defendant 327 days of jail time credits and 467 days of gap time credits.

Defendant filed an appeal challenging his sentence. The appeal was heard on our excess sentence calendar. Defendant argued that the trial judge should have sentenced him as a second-degree offender and imposed a seven-year sentence. We entered an order on March 31, 2004, affirming the sentence. Defendant filed a petition for certification, which was denied by the Supreme Court on October 21, 2004. State v. Harrison, 182 N.J. 142 (2004).

On May 24, 2006, defendant filed a petition for PCR. Defendant argued that he had been denied the effective assistance of counsel. Defendant asserted that his attorney placed him "under the false assumption" that his gap time credits would reduce the actual amount of time he would serve in custody. Defendant also asserted that he did not have "a clear understanding" of the consequences of his plea because counsel failed to correctly advise him as to the applicability of ...


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