April 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN NAVARRO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 17, 2009
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.
(Not raised below).
C. AN APPEAL ALLEGING ERRORS WITH REGARD TO DOWNGRADING THE CHARGES FOR SENTENCING WOULD HAVE BEEN SUCCESSFUL.
(Not raised below).
D. AN APPEAL ALLEGING ERRORS CONCERNING THE ISSUE OF WHETHER THIS WAS A VIOLENT CRIME WOULD HAVE BEEN SUCCESSFUL.
(Not raised below).
III. THE RULING IN NATALE SHOULD HAVE BEEN APPLIED TO THIS CASE; THUS THE JUDGE BELOW ERRED IN DENYING POST-CONVICTION RELIEF.
After review of the record in light of the arguments presented, we are convinced that none have sufficient merit to warrant more than the brief comments that follow, and we affirm substantially for the reasons stated by Judge Subryan in his oral opinion of October 26, 2007.
Defendant correctly observes that the explanation of the consequences of the NERA parole at the time of his plea was not as complete as that required under State v. Johnson, 182 N.J. 232, 235-36, 241 (2005), and State v. Freudenberger, 358 N.J. Super. 162, 167-70 (App. Div. 2003), both of which were decided years after defendant entered his plea. But, withdrawal of the guilty plea on a proper showing of materiality is the only remedy Johnson affords, 182 N.J. at 244, and defendant seeks a reduction of his sentence. He did not ask to withdraw his plea and go to trial without the benefit of the plea agreement. The trial court's denial of that relief was consistent with Johnson, supra, 182 N.J. at 242 n.3 (disapproving Freudenberger to the extent that it permits withdrawal of a plea without a showing of materiality).
Defendant cannot establish that he received ineffective assistance of counsel at any point. Nothing counsel did or failed to do could have changed his sentence. State v. Preciose, 129 N.J. 451, 462-64 (1992).
Defendant pled guilty to two counts of first-degree robbery and admitted that he used a gun in the course of committing the crimes. With adequate support in the record, the trial court found that the aggravating factors outweighed the mitigating factors. Accordingly, defendant was not eligible to be sentenced to a term appropriate for a crime of the second degree, and he received the minimum sentence available under the law. N.J.S.A. 2C:15-1; N.J.S.A. 2C:43-6a(1); N.J.S.A. 2C:44-1f(2) (authorizing a sentence to a term appropriate for a crime one degree lower when the court is clearly convinced that the mitigating factors "substantially outweigh the aggravating factors" and "the interest of justice demands" the lesser sentence). Moreover, sentencing in accordance with N.J.S.A. 2C:43-7 was required because defendant admitted using a gun during the commission of the robberies. Accordingly, nothing defense counsel could have done at the time of defendant's plea or sentencing, or if an appeal had been filed, would have resulted in a reduction of defendant's sentence. See State v. Cassady, ___ N.J. ___, ___ (2009) (slip op. at 17-25).