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State of New Jersey v. Mark Gonzalez

March 30, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK GONZALEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-05-1269.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 15, 2011

Before Judges Wefing and Baxter.

Defendant Mark Gonzalez appeals from a September 30, 2009 Law Division order denying his petition for post-conviction relief (PCR). After an evidentiary hearing, the judge rejected defendant's claims that: his guilty pleas to two No Early Release Act (NERA) offenses were constitutionally flawed because he was never informed that his guilty pleas would subject him to a mandatory five-year period of parole supervision; and trial counsel rendered ineffective assistance by failing to review the discovery, failing to argue relevant mitigating factors at sentencing, failing to file an appeal of defendant's conviction and forcing defendant to plead guilty instead of exercising his right to a trial by jury. After reviewing defendant's contentions in light of the record and applicable law, we are satisfied that the judge's findings of fact are amply supported by the record and his legal conclusions are sound. We affirm.

I.

In a fifteen-count indictment, defendant was charged with two counts of carjacking, each on a separate date and each involving a different victim; second-degree eluding police; third-degree resisting arrest; third-degree aggravated assault on a police officer and related weapons offenses. On February 25, 2002, the State and defendant reached a plea agreement, under which defendant would plead guilty to the two counts of carjacking and the single count of second-degree eluding in return for a maximum potential sentence of fifteen years, subject to the eighty-five percent parole ineligibility term required by NERA, N.J.S.A. 2C:43-7.2.

In addition to completing the standard three-page plea form, defendant executed the "Supplemental Plea Form for No Early Release Act Cases" (Supplemental Plea Form). Questions 1 and 2a asked defendant whether he was pleading guilty to a first or second-degree violent crime, and if he understood that by pleading guilty to "armed carjacking" he understood that he would be required to serve eighty-five percent of the sentence before becoming eligible for parole. The word "yes" was circled beside each of those two answers. The next question, 2b, asked:

Do you understand that by pleading guilty to these charges, the minimum mandatory period of parole ineligibility is 8 1/2 years and ___ months (fill in number of years/months) and the maximum period of parole ineligibility can be 14 1/3 years*fn1 and ___ months (fill in number of years/months) and this period cannot be reduced by good time, work or minimum custody credits?

Although the words [YES] [NO] were printed directly after that question, neither one was circled.

Next was question 3, which pertained to the mandatory five-year term of parole supervision required by NERA. Question 3 on the Supplemental Plea Form asked:

Do you understand that because you have plead [sic] guilty to these charges, the court must impose a 5 year term of parole supervision and that term will begin as soon as you complete the sentence of incarceration?

First Degree Term of Parole Supervision - 5 years

Second Degree Term of Parole Supervision - 3 years As with question 2b, neither "YES" nor "NO" was circled, although the "5" was handwritten in the appropriate space.

The last question, question 4, related to the potential consequences of violating the period of parole supervision. Question 4 asked:

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 ...


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