On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-11-2724.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2008
Before Judges Winkelstein, Fuentes and Chambers.
Defendant William Norman appeals from the order of the Law Division, Criminal Part, denying his petition for post- conviction relief (PCR). After reviewing the record before us, we reverse and remand.
These are the relevant facts. On April 20, 1998, defendant pled guilty pursuant to a negotiated agreement to first-degree robbery, N.J.S.A. 2C:15-1.*fn1 In the plea form he completed and signed, defendant acknowledged that the State would be seeking to have him sentenced subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn2 Toward that end, defendant stipulated at the plea hearing that he inflicted "serious bodily injury" on the victim of the robbery, as that term is defined in N.J.S.A. 2C:11-1(b). The State in turn agreed to recommend that defendant be sentenced to a term of fourteen years, with an eighty-five percent period of parole ineligibility pursuant to NERA.
As was the practice at that time, defendant did not complete a separate, supplemental plea form describing, with specificity, all of the penal consequences of being sentenced subject to NERA, including that the court was required to impose a five-year period of parole supervision, commencing immediately upon his release from incarceration. N.J.S.A. 2C:43-7.2(c). The judge at the plea hearing did not inform defendant of this mandatory period of parole supervision.
The record of the plea hearing shows that defendant was given the opportunity to discuss the nature of the charges against him with his counsel before deciding to accept the State's offer. At the plea hearing, the prosecutor placed the details of the plea agreement on the record in open court, with defendant and his attorney present. As part of this description, the prosecutor made the following statement:
Judge, the State will seek to have this defendant sentenced under the No Early Release Act, which requires him to serve 85 percent of the sentence imposed on Indictment 97-11-2724 [the indictment reflecting the first-degree robbery charge].
The defendant will stipulate, Judge, to the fact that serious bodily injury was caused to the victim and the State will rely, Judge, on the defendant's factual basis as well as this stipulation under the No Early Release Act.
Thereafter, defense counsel addressed the court indicating her concurrence with the prosecutor's recitation, and confirming that she and her client had been provided with the victim's medical records which, in defense counsel's judgment, "certainly document the serious bodily injury." The medical records referred to by defense counsel contained the following description of the injuries sustained by the victim:
Patient is a 25 year old white male who was assaulted yesterday [September 30, 1997] by an assailant who struck him to the left side of the face twice knocking him to the ground. Patient was not sure whether the assailant was using brass knuckles or not.
He said that he really did not lose consciousness, if he did it was only for a second. Patient was able to pick himself up off the ground and was able to go back to the hotel and called his father upstairs in the room. He was then brought to the Emergency Room and seen. Since there was no loss of consciousness, no neck pain his lacerations were sewn and he was discharged into his father's care. Patient subsequently has developed severe headaches that he states appear right behind his eyes and he has had multiple episodes of vomiting. Patient, after returning to the Emergency Room, had a CT scan of the head performed which showed a small right subdural hematoma and a left parietal temporal contusion.
The discovery provided by the State also included records of other medical examinations performed on October 14, 1997, two weeks after the September 30, 1997 attack. These records show that the victim's complaints of headaches had largely subsided. The examining physician described the injuries as "cerebral contusion of a contrecoup type with evidence of contusion of both temporal tips. Also a small right subdural hematoma." The doctor's final recommendations included that the victim be "rescan[ned] . . . in two weeks," because he expected that the "contusions and the subdural hematoma will resolve spontaneously."
At the plea hearing, the judge questioned defendant directly to confirm the latter's understanding of the terms of the plea agreement. When asked to provide a factual basis for the offense of first-degree robbery, defendant simply stated that he hit the victim twice with his hand and took some money from him. With respect to the injuries sustained by the victim, the judge asked defendant the following question: "[B]ased on your review of the discovery, is it a fact that that individual did sustain serious bodily injuries?" Defendant responded: "Yes, according to the medical records."
Although not entirely clear from the appellate record, it seems that shortly after he pled guilty, defendant informed the local Public Defender's Office that he wanted to retract his guilty plea based, in part, on his attorney's failure to challenge the State's claim that the victim suffered serious bodily injury and on her failure to apprise of him of the NERA mandatory five-year parole supervision.
In response to defendant's allegations, the Public Defender's Office determined that the staff attorney handling the case was in a position of conflict, and assigned new counsel to represent defendant at the sentencing hearing. Defendant alleges that despite having communicated this problem to the Public Defender's Office shortly after the plea hearing, he did not meet or communicate with substitute counsel during the four months between the plea hearing and the date of sentence. According to defendant, the first time he had any contact with substitute counsel was thirty minutes before the commencement of the sentencing hearing.
On the sentencing hearing held on August 14, 1998, substitute counsel indicated to the court that defendant wanted to retract his guilty plea, and requested that the sentencing hearing be adjourned for the purpose of having defendant examined by a psychiatrist. If the court was inclined to proceed with the sentence, counsel advised the court that he would address the deficiency in defendant's stipulation as to the applicability of ...