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State of New Jersey v. Ernest Washington

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERNEST WASHINGTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-08-1609.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 13, 2010

Before Judges Sabatino and Alvarez.

Defendant Ernest Washington appeals from an August 5, 2009 order denying his petition for post-conviction relief (PCR) following oral argument. We affirm.

On November 1, 2006, defendant entered a guilty plea to second-degree aggravated assault with serious bodily injury, N.J.S.A. 2C:12-1(b)(1). The charges stem from defendant's May 30, 2005 attack upon the victim, Troy Anderson, which left Anderson permanently disabled. In accord with the plea agreement, defendant was sentenced on January 19, 2007, to ten years imprisonment, subject to eight-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appealed his sentence, and by order dated November 14, 2007, an excessive sentencing panel of this court affirmed. Defendant appealed that decision and the Supreme Court denied his petition for certification on February 4, 2008. State v. Washington, 194 N.J. 268 (2008). Defendant thereafter filed a pro se petition for PCR and supporting brief. A supplemental brief was submitted by assigned counsel. After oral argument on July 27, 2009, the PCR judge, who had also been the plea and sentencing judge, issued a written decision denying the petition.

On appeal, defendant advances only one contention of error. He claims that he received ineffective assistance of counsel during the PCR proceeding because his attorney neglected to argue the single issue defendant presented in his pro se brief.

That issue is that the judge "misinformed" him of "the total penal consequences" resulting from a NERA sentence when the plea agreement was placed on the record. Because defendant contends that neither the judge nor his trial attorney explained that he would be subject to parole supervision for three years after completion of the actual term of incarceration, he asserts he is therefore entitled to vacate his plea. See N.J.S.A. 2C:43-7.2(c). Furthermore, he also asserts that the judge did not explain that a parole violation during that three-year period could result in total imprisonment for longer than the ten-year actual sentence. See Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:43-7.2(c) (2010).

When defendant completed the paperwork ancillary to the entry of his guilty plea, he signed a "Supplemental Plea Form for [NERA] cases" which included the following:

2. Do you understand that because you have pled guilty to these charges the court must impose a 3 year term of parole supervision and that term will begin as soon as you complete the sentence of incarceration? [YES] [NO]

Second Degree Term of Parole Supervision - 3 years

3. Do you understand that if you violate the conditions of your parole supervision that your parole may be revoked and you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed? [YES] [NO]

The number "3" is written in the blank space in paragraph 2. The word "YES" is circled in response to each of the questions. To reiterate, this form bears defendant's signature.

At the time of defendant's plea, the court stated:

THE COURT: Additionally, there is what we call a parole supervision period. I'll give you an example. Let's assume that you had 10 years with NERA. You served 85 percent of the 10 years. Then you're released on parole supervision. You violate a parole on the very first day. This is an example, but I want to make sure you understand the concept. That means that if you violated parole in the very first day, you could spend three additional years above and beyond your sentence here in this plea agreement.

THE DEFENDANT: Yes.

PCR counsel did not raise defendant's point concerning the parole consequences issue during oral argument, hence the PCR judge did not address it.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that:

(1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Ordinarily, we consider errors or omissions made by the trial court only where they are "clearly capable of producing an unjust result . . . ." R. 2:10-2.

In this case, the court and counsel's omission of discussion about defendant's parole supervision argument does not affect our decision that defendant's PCR application lacks merit. Not only did the written plea form defendant signed with the assistance of his plea attorney clearly explain that a three-year term of supervision would be imposed, the judge when taking the plea specifically reviewed with defendant on the record in open court the possibility that a parole violation might extend his sentence. The plea form and the transcript contradict defendant's position.

Trial counsel's performance was not deficient, even if PCR counsel did not raise the parole supervision argument at the PCR proceeding, nor did the omission prejudice defendant. The PCR judge's failure to consider the issue was not prejudicial. The contention of error requires no further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20110201

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