On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-07-1331.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Payne and Alvarez.
Defendant, Erik S. Meyers, appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) and his request for an evidentiary hearing. We affirm.
On July 16, 1997, defendant was charged in a Monmouth County indictment with four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). He pled guilty on January 11, 1999 to one count of second-degree sexual assault in exchange for the State's agreement to dismiss the remaining charges and to recommend a sentence of five years of imprisonment. Defendant was sentenced on May 28, 1999 in accord with the agreement.
When defendant's guilty plea was placed on the record, the trial judge reviewed the plea form with defendant in detail, including the section that explained that defendant would be sentenced to "a special sentence of community supervision for life." During his colloquy with the court, defendant acknowledged that he would be subject to community supervision for life and his understanding that if he violated those conditions he could be charged with a separate fourth-degree crime. See N.J.S.A. 2C:43-6.4.
On January 22, 2004, defendant submitted a pro se petition for PCR, which was amplified by counsel on August 22, 2006, asserting that he was not adequately informed as to the meaning of "community supervision for life." In fact, when he signed his conditions of parole before his release from prison, defendant wrote "under duress" on the contract and noted his further objection that he was signing the document without an opportunity to consult an attorney. That is the crux of defendant's objection, as contained in the single point raised in his brief:
THE TRIAL COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION FOR POST CONVICTION RELIEF ON THE GROUNDS THAT HIS COUNSEL WAS INEFFECTIVE FOR NOT FULLY ADVISING HIM OF THE COMMUNITY SUPERVISION FOR LIFE REQUIRED UNDER THE MEGAN'S LAW.
Judge Citta denied the PCR motion after concluding that the plea form sufficiently notified defendant of the imposition of community supervision for life and that, in any event, defendant had failed to prove that he was prejudiced by the lack of a more detailed explanation. The PCR judge further found that the colloquy at the time of the entry of the plea established defendant's detailed understanding of, and satisfaction with, the agreement. The judge concluded that defendant's current dissatisfaction stemmed not from a real lack of understanding when the plea was entered, but rather, from a desire to avoid significant parole conditions.
We note first that the amendments to N.J.S.A. 2C:43-6.4 which clarified that lifetime community supervision was the equivalent of parole supervision for life, were not enacted until 2003. The amending bill, however, did not change the substance of the law. See Pressler, Current N.J. Court Rules, on N.J.S.A. 2C:43-6.4 (2008). This defendant pled guilty approximately four years prior to the amendments.
Every criminal defendant is "entitled to know, with reasonable exactitude, the penal consequences of any criminal charge he or she is called upon to defend against." State v. Thomsen, 316 N.J. Super. 207, 214 (App. Div. 1998) (citing State v. Howard, 110 N.J. 113, 124-25 (1988)). Undoubtedly, plea bargaining is a critical stage of the criminal proceeding at which time a defendant is entitled to the effective assistance of counsel and to which a constitutional right to representation attaches. State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.) certif. denied, 174 N.J. 544 (2002). Imposition of community supervision for life is "a penal and not a collateral consequence of the sentence." State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003); see also, State v. Lucky, 366 N.J. Super. 79, 89-90 (App. Div. 2004).
The underlying principles are well settled. In order to succeed on a claim of ineffective assistance of counsel, a defendant must establish that his counsel's performance was seriously deficient and that the deficient performance ...