On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1306.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Judges Payne and C.L. Miniman.
Defendant Reynaldo Corriano appeals from the denial of his petition for post-conviction relief (PCR) seeking to withdraw his guilty plea because he was not fully apprised of the penal consequences of his plea, and his plea counsel was ineffective in this respect. We affirm in part, and reverse and remand in part.
Defendant was charged in 2001 with second-degree conspiracy to commit first-degree robbery, contrary to N.J.S.A. 2C:5-2; third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b; second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1).
On January 24, 2003, defendant pled guilty to first-degree armed robbery. There was no agreed sentence, but the State recommended twenty years with eighty-five percent of the sentence to be served; defendant agreed to waive his right to appeal. During the judge's voir dire of defendant, he inquired whether defendant's counsel had gone over the plea agreement with him, to which defendant replied, "Yes, sir." The same reply was given to the judge's inquiry into whether defendant's counsel answered all of defendant's questions and whether he was satisfied with counsel.
On further questioning about the plea agreement, defendant testified that he went over the plea agreement with his attorney, who asked him questions and filled out the form. Defendant answered the questions truthfully and stated that he understood each and every question. The following exchange then took place:
THE COURT: Okay, I want you to take a look at the agreement. Now, there have been no promises made, but I understand that [the prosecutor] is going to recommend, if you cooperate fully against the co-defendant, a sentence of 20 years, 85 percent without parole. [Defendant's counsel] is certainly entitled to argue for less, but that's what the State will be recommending. Depending on the degree of cooperation, [the sentence will be] anywhere from 20 to 30 years. You understand that I'm not bound by any of these numbers, do you understand that?
THE COURT: Okay, now did you initial the first couple pages and sign the last page in your handwriting?
Defendant then acknowledged that he was facing life imprisonment, twenty-five years without parole, if he went to trial. He testified to the elements of the crime, admitting that he and his co-defendants went into a laundry to rob Dong Xiang Zhang and Qui Zhou; one of his co-defendants, Jose Ortiz, had a gun; and both co-defendants roughed up Zhang while holding the gun to his head. As they were leaving, Qui grabbed defendant and he hit her. She fell to the ground and suffered serious bodily injury. He admitted knowing that Ortiz had a gun before they went into the laundry.
The plea form that was reviewed by defendant on the day of his plea was comprised of four pages. The first three pages were the standard plea form, which provided that the State's recommended sentence was "open, with recommendation of not less than 20 years w/85% and defendant cooperation w/co[-]defendant case; & stipulating to persistent offender."
The fourth page was the "Supplemental Plea Form for No Early Release Act (NERA) Cases (N.J.S.A. 2C:43-7.2)." In response to Question One, defendant's counsel circled "yes," indicating that defendant understood that his plea to first-degree robbery was subject to an eighty-five percent parole-ineligibility period. Counsel also circled "yes" in response to Question Three, indicating that defendant understood that if he violated parole supervision, his parole could be revoked, subjecting him to a return to prison even if he completed serving his sentence.
However, the second question was not answered. That question appears as follows:
2. Do you understand that because you have pled guilty to these charges the court must impose a 3 5 year term of parole supervision and that term will begin as soon as you complete the sentence of incarceration? [Yes] [No]
First Degree Term of Parole Supervision - 5 years
Second Degree Term of Parole Supervision - 3 years
Although there is a place to circle "yes" or "no" on the form, neither answer was circled. Defendant signed at the bottom of ...