On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-08-0867.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Grall.
Defendant Juan Navarro pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1, and was sentenced to two concurrent ten-year terms of imprisonment subject to an eighty- five percent term of parole ineligibility and a five-year term of parole supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1 Judgment of conviction and sentence was entered on December 1, 2000. Defendant did not file a direct appeal. He filed a petition for post-conviction relief on October 28, 2005, and he appeals from the denial of that petition.
Defendant entered his guilty plea pursuant to an agreement that required the State to dismiss the remaining counts of the indictment and recommend concurrent fifteen-year terms subject to NERA. Prior to the plea and at the request of counsel, R. 3:9-3(c), the trial court indicated that it would not impose a sentence greater than ten years subject to NERA if defendant's criminal record were as represented. On the record, defense counsel advised defendant that NERA required him to serve not only eighty-five percent of the term imposed but also a five-year parole term following release. Defendant also signed a plea form on which both the parole ineligibility term and the five-year term of parole supervision required by NERA were explained. Neither the plea form nor defense counsel detailed the possibility of reincarceration for violation of the NERA parole term.
Defendant provided a factual basis for his guilty pleas. He admitted that on April 4, 2000 he had a gun in his pocket which he pointed at the manager of a store, in the presence of a clerk, while demanding money. Although he kept it in his pocket, he acknowledged that he pointed it so it would be apparent that he had a gun. Defendant said he had the "intent to commit a robbery" and explained that he picked the store because of what he knew based on his prior employment in another store in the chain. He also acknowledged that when he was arrested after the robbery and one block away from the store he was in possession of the gun. According to the police report, the gun was loaded.
On appeal from the denial of his motion for post-conviction relief, defendant argues:
I. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO EXPLAIN THE FULL CONSEQUENCE OF THE PLEA REGARDING SUPERVISED PAROLE; THE JUDGE BELOW ERRED IN DENYING POST-CONVICTION RELIEF.
II. TRIAL COUNSEL WAS INEFFECTIVE BY NEGLECTING TO FILE AN APPEAL; THUS THE JUDGE BELOW ERRED IN DENYING POST-CONVICTION RELIEF.
A. AN APPEAL ALLEGING ERRORS WITH REGARD TO THE FIVE-YEAR PERIOD OF SUPERVISED PAROLE WOULD HAVE BEEN SUCCESSFUL. (Not raised below).
B. AN APPEAL ALLEGING ERRORS WITH REGARD TO AGGRAVATING AND MITIGATING FACTORS WOULD HAVE BEEN SUCCESSFUL.
C. AN APPEAL ALLEGING ERRORS WITH REGARD TO DOWNGRADING THE CHARGES FOR SENTENCING ...