August 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NAJEE MARSHALL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-02-0378.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2009
Before Judges Fuentes, Gilroy and Chambers.
Defendant Najee Marshall appeals from the order of the Law Division, Criminal Part, denying his post-conviction relief (PCR) petition. We affirm.
On September 9, 2002, defendant pled guilty pursuant to a negotiated plea agreement to one count of first-degree manslaughter, N.J.S.A. 2C:11-4. On October 17, 2002, the court sentenced defendant to a term of 15.5 years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43.72.
On defendant's direct appeal heard on an Excessive Sentence Oral Argument calendar under Rule 2:9-11, we affirmed the plea and sentence imposed by the trial court in an order dated April 28, 2004. Defendant filed this PCR petition pro se on September 20, 2004, arguing ineffective assistance of counsel. The court thereafter assigned counsel to defendant and the matter came before Judge Connor on July 20, 2007, for adjudication. After considering the arguments of counsel, Judge Connor denied the petition.
Defendant now appeals raising the following argument.
MR. MARSHALL IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AND THAT HIS PLEA WAS NOT KNOWING OR VOLUNTARY.
We reject this argument and affirm. Defendant's claim of ineffective assistance of counsel is predicated on his assertion that before entering his guilty plea, his attorney did not clearly explain to him the five-year period of parole supervision under NERA. Defendant's claim is substantively without merit and procedurally barred.
The record shows that defendant completed and signed the supplemental NERA plea form, in which the parole supervision consequences of his plea were clearly explained. Defendant also initialed the box next to the particular question, confirming that he had read and understood this issue. During defendant's plea hearing, the trial judge specifically asked defendant if he understood that he would be on parole supervision for at least five years upon his release. Defendant answered in the affirmative. There is thus no legal basis for defendant's claim. State v. Johnson, 182 N.J. 232, 241-42 (2005).
Finally, independent of this substantive deficiency, defendant's claim is also procedurally barred under Rule 3:22-4, because this claim could have been raised in his direct appeal.
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