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State v. Kalahari

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DHARUBA KALAHARI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-07-0798.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2009

Before Judges Fisher and Sapp-Peterson.

Defendant Dharuba Kalahari appeals from the trial court order denying his petition for post-conviction relief (PCR). We affirm.

Defendant pled guilty to six counts of first-degree armed robbery, N.J.S.A. 2C:15-1(a). The court sentenced defendant to an aggregate thirty-year period of incarceration with an eighty-five percent period of parole ineligibility and a five-year mandatory period of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed the NERA aspect of the sentence imposed and also sought modification of restitution he was ordered to pay, claiming he had no ability to pay the total amount of restitution the trial court ordered. In an unpublished opinion we affirmed the conviction and sentence imposed but remanded to the trial court to conduct a hearing on defendant's ability to pay and a schedule for making such payments. State v. Kalahari, No. A-6580-99T4 (App. Div. February 21, 2002).

On March 18, 2005, defendant filed a pro se petition for post-conviction relief (PCR) claiming imposition of the NERA sentence violated "the prohibition against double jeopardy," he "was not informed of the consequences of his plea," and the sentence imposed "exceeded the limits of the plea agreement without affording defendant an opportunity to withdraw his plea." The trial court conducted oral argument on December 18, 2006, and at its conclusion rendered an oral opinion rejecting each of defendant's claims. The court found that all of the facts necessary for it to reach a decision were part of the record and therefore, no evidentiary hearing was necessary. The court determined from its review of the record that defendant knowingly and voluntarily entered into the plea agreement and that he failed to establish a prima facie case for PCR relief.

On appeal defendant contends:

POINT I

DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL FAILED TO INFORM HIM OF THE PENAL CONSEQUENCES OF NERA'S FIVE YEAR MANDATORY PERIOD OF PAROLE SUPERVISION, AND THEREFORE HIS GUILTY PLEA WAS ENTERED UNKNOWINGLY AND INVOLUNTAR[ILY].

A. Defendant Established A Prima Facie Case Of Ineffective Assistance Of Counsel Under The Strickland/Hill Paradigm And, Therefore, The PCR Court Abused Its Discretion By Refusing To Hold An Evidentiary Hearing Pursuant To Preciose.

B. Defendant is Entitled To Withdraw His Guilty Plea Because It Was Not Made Knowingly Or Voluntarily Or, At a Minimum A Materiality Under Johnson.

POINT II

THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPORT HIS REQUEST FOR POST-CONVICTION RELIEF.

We have considered each of these points in light of the record, the applicable law, and arguments advanced, and we are satisfied that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

Trial courts are not required to inform a defendant of all consequences that may flow from a guilty plea. State v. Howard, 110 N.J. 113, 122 (1988). Defendant is entitled to be made fully aware of those consequences that are "direct" or "penal." Ibid. Being advised of the consequences of a parole violation during the five-year period of NERA parole supervision is not a direct consequence of a guilty plea and is only a penal consequence of a parole violation. Moreover, at the time defendant entered his plea, he advised the court that he was serving a parole violation. At sentencing the judge remarked that "[w]hat [defendant's] criminal history clearly shows is that this defendant has served his entire adult life in prison, except for periods of about one to two years, at which time he has been paroled in each instance. Upon being paroled, he has committed multiple crimes resulting in his conviction and a subsequent lengthy sentence." Under these circumstances there can be no question that defendant, even without being told of the consequences of a parole violation, was fully aware that a parole violation during the five-year period of supervision under NERA would result in further incarceration.

Affirmed.

20091130

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