On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-08-2668.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and LeWinn.
Defendant Kiarre Sanders appeals from a May 23, 2007 trial court order denying his petition for post-conviction relief (PCR).*fn1
Facing a maximum sentence in excess of fifty years for disarming and carjacking a police officer at gunpoint, and subsequently throwing boiling water on a fellow jail inmate, defendant pled guilty to first-degree carjacking, first-degree disarming a law enforcement officer and a related weapons offense, and assault. Although the plea agreement called for an eighteen-year sentence, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the judge initially indicated that he was inclined to impose a fourteen-year sentence.
During the plea colloquy, defendant specifically acknowledged to the judge that he had signed the supplemental NERA plea form and that he understood the plea agreement. Accordingly, defendant was sentenced on October 30, 2000, to a term of fourteen years in prison subject to NERA. During the sentencing hearing, the judge stated on the record that he was imposing "a 5 year term of parole supervision and that will begin as soon as Mr. Sanders completes the sentence." We affirmed defendant's sentence on an Excessive Sentencing calendar. State v. Sanders, Docket No. A-2339-00 (App. Div. Oct. 15, 2001).
Defendant filed a pro se PCR petition on July 21, 2006. He contended in that petition that he had previously filed a PCR on October 21, 2005, which the court did not acknowledge as filed, a contention the PCR judge accepted as true. In his 2006 PCR certification, defendant contended that his former trial attorneys were ineffective because "they failed to make petitioner aware that he would have to serve parole when [the] prison term was complete" and that he would "be supervised during that parole. See State v. Johnson, 182 N.J. 232 (2004); State v. Freudenberger, 358 N.J Super. 162 (App. Div. 2003). In a supplemental PCR brief filed by defendant's assigned attorney, counsel asserted that "[k]nowing about the parole supervision would have altered [defendant's] initial choice to accept the plea and take the matter to trial."
In a nine-page written opinion dated May 23, 2007, the judge rejected the PCR as untimely, apparently based on the view that the five-year filing limit ran from the date of the plea hearing on September 29, 2000, rather than from the date of the judgment of conviction.
However, the PCR judge, who had also been the sentencing judge, rejected the claim on the merits as well, noting that defendant had acknowledged signing the NERA plea form, and was also made aware of the five-year parole supervision at sentencing. The judge also found that defendant had not presented a prima facie case of ineffective assistance of counsel because he had failed to demonstrate by a preponderance of the evidence that had trial counsel informed Petitioner of the 5-year parole period, the Petitioner would have changed his mind regarding the plea. Prejudice must be proved, and this the Petitioner has failed to do.
The judge also concluded that defendant could not raise claims of an excessive (as opposed to illegal) ...