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State v. Polo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MANUEL POLO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-12-2729.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2009

Before Judges Stern and Waugh.

Defendant appeals from the denial of his petition for post-conviction relief ("PCR"). Defendant pled guilty to second-degree robbery in exchange for the dismissal of a count charging receiving stolen property and a maximum eight-year sentence subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43- 7.2.*fn1 After PCR was denied without the assignment of counsel, we remanded for the assignment of counsel and plenary consideration of the petition.

On the remand, Judge Kevin Callahan found that the petition was not time barred but that defendant was aware of the application and impact of NERA and, therefore, of the penal consequences of the sentence, and that he did not receive the ineffective assistance of counsel.

The factual basis for defendant's guilty plea included the fact that the victim fell to the ground during a purse snatching. In response to the judge's questioning, defendant admitted he took "her property by force," having "grabb[ed] it" while the purse was "on her person."

We must examine whether the plea was nevertheless knowingly, intelligently and voluntarily entered, and the record must also show that any "omission of information about NERA" was material. See, e.g., State v. Johnson, 182 N.J. 232, 243-44 (2005). Here, defendant claims he was not adequately questioned about his understanding of parole supervision including that, upon violation, he could serve three additional years, and, therefore, more than the eight-year maximum sentence.

It is true that State v. Johnson requires questioning on the subject of NERA's fixed period of parole supervision at the time of plea and to assure defendant has an understanding of the impact of parole supervision under NERA.*fn2 See id. at 240-41. However, the plea form here reflects defendant was asked about the three-year period of parole supervision, and his response indicated that he understood it begins "even if you have completed serving the term of imprisonment previously imposed." Moreover, as Judge Callahan demonstrated, defendant was asked at the plea colloquy if he understood the consequences of NERA ― that upon violation of the terms of parole he could serve three more years, "so you could serve [eleven] years on an [eight-] year sentence."

We cannot conclude defendant was not aware of the penal consequences of his plea, that he received ineffective assistance of counsel or even that he made a sufficient showing to warrant an evidentiary hearing on that subject.

We affirm the denial of PCR substantially for the reasons stated by Judge Callahan in his written opinion attached to his order of March 18, 2008.


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