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State of New Jersey v. Ernest Washington

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...


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