On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-05-0474.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Simonelli.
Petitioner J.Z. appeals from an order, dated April 11, 2008, denying his petition for post-conviction relief (PCR). In his appeal, petitioner advances two points for our consideration:
POINT I: THE COURT BELOW WAS REQUIRED [TO] PERMIT APPELLANT TO WITHDRAW HIS PLEA OF GUILTY AS A MATTER OF LAW.
POINT II: THE GUILTY PLEA WAS REQUIRED TO BE VACATED BECAUSE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
We do not discuss those points specifically because we affirm, substantially for the reasons expressed in the succinct, but thorough letter opinion, dated April 11, 2008, issued by Judge Philip H. Mizzone, Jr. We add only these brief comments.
J.Z. was indicted on May 1, 2000, and charged with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-2(c)(1) (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count three). On September 26, 2000, he pleaded guilty to count one, second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and in exchange, the State agreed to recommend seven years in state prison with eighty-five percent of that term to be served before he would be eligible for parole. Notwithstanding the State's initial recommendation, the court indicated at the plea hearing, without objection from the State and with concurrence from the victim, that it was inclined to sentence J.Z. as a third-degree offender and would, subject to the Adult Diagnostic Treatment Center (ADTC) evaluation, impose a term of four years in prison, with an eighty-five percent parole disqualifier.
Notably, the plea agreement required, however, that J.Z. be evaluated at the ADTC, and the voir dire of J.Z. by defense counsel included the following exchange:
Q: You do understand that you will be going to a treatment center for evaluation; is that right?
Q: And you understand that according to the evaluation that will determine when and if you would receive parole, that you are not under the normal parole guidelines of the ...