August 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KIARRE SANDERS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 29, 2008
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) sentence in a PCR petition.
On this appeal, defendant has raised the following points for our consideration:
POINT I: THE POST-CONVICTION RELIEF TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION AS UNTIMELY UNDER RULE 3:22-12 BECAUSE THE ORIGINAL PETITION WAS WITHIN THE FIVE YEAR PERIOD.
POINT II: TRIAL COUNSEL'S FAILURE TO INFORM THE APPELLANT OF THE EXACT NATURE AND TERMS OF THE PLEA AGREEMENT CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: THE PCR TRIAL COURT'S FAILURE TO CONDUCT AN EVIDENTIARY HEARING CONSTITUTES REVERSIBLE ERROR (NOT RAISED BELOW).
POINT IV: PCR TRIAL COUNSEL'S PERFORMANCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. PCR Trial Counsel's Failure To Investigate If Grounds Existed For Excusable Neglect Under Rule 3:22-12 Constituted Ineffective Assistance Of Counsel.
B. PCR Trial Counsel's Failure To Amend Appellant's Petition To Allege That If He Had Been Correctly Informed He would Not Have Entered A Guilty Plea Constituted Ineffective Assistance Of Counsel.
We agree with defendant that his PCR was timely filed on October 21, 2005. See R. 3:22-12(a). However, we conclude that defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
On this appeal, the State has produced the plea form, which defendant signed and which clearly advised defendant that he would be required to serve the five-year period of parole supervision and that he could be re-incarcerated if he violated that parole. Moreover, as the trial judge correctly noted in his opinion, defendant was also made aware of the five-year parole supervision period at sentencing. He did not object to that aspect of his sentence at the sentencing hearing or raise the issue in his direct appeal.
In his PCR appellate brief, defendant now admits that he signed the NERA plea form but contends he did not understand it. However, nothing in defendant's PCR certification (which is the only legally competent evidence in the record) asserts that he did not understand the form even though he signed it. More importantly, as the PCR judge noted, defendant did not certify that he would have rejected the plea agreement if he had known about the additional five years of parole supervision.
Recognizing these weaknesses, defendant claims in his appellate brief that his PCR trial-level counsel was ineffective for failing to have defendant file a supplemental certification containing these contentions. However, this appeal is not the appropriate vehicle in which to raise this claim for the first time, and we will not speculate that defendant would have signed such a certification under oath.*fn2
A defendant seeking to withdraw a plea under these circumstances "also must show that the mistaken belief about, or lack of knowledge of, a penal consequence of a plea was material to the decision to plead guilty and prejudiced the defendant." State v. Johnson, supra, 182 N.J. at 241. Defendant, who had a multitude of prior indictable convictions, as well as multiple juvenile adjudications, was facing at least fifty years in prison had he been convicted at trial. Our review of the plea transcript reveals his insistence that he had discussed the plea agreement with his attorney and that he understood it, and his emphatic acceptance of the deal, which was extremely favorable under the circumstances. Nothing in this record remotely suggests that the five-year period of parole supervision would have been material to defendant's decision to accept or reject the plea. See State v. McQuaid, supra, 147 N.J. at 498 (1997).