On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-07-0742.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
Defendant appeals from the August 15, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
In 1999, defendant was indicted for second-degree attempted sexual assault, N.J.S.A. 2C:14-2(c)(1) and 2C:5-1; and fourth- degree criminal sexual contact, N.J.S.A. 2C:14-3(b). On September 13, 1999, pursuant to a negotiated plea agreement, he pled guilty to attempted sexual assault; the State agreed to recommend a flat five-year sentence. Both counsel and the judge expressed uncertainty as to whether the No Early Release Act, N.J.S.A. 2C:43-7.2(a) (NERA), would apply to defendant's sentence; therefore, the judge ruled, with both parties' consent, that he would take defendant's plea and if it were subsequently determined that NERA applied, defendant would be permitted to retract his plea.
Defendant acknowledged that he "speak[s] and understand[s] English." He gave a factual basis in which he admitted that he attempted to force the victim to put his penis in her mouth. Defendant also acknowledged that he signed the supplemental plea form relating to the requirements imposed by Megan's Law, N.J.S.A. 2C:7-1 to -23, and that he discussed with his attorney "all the questions and answers" on that form before signing it; he stated that he was satisfied with the services of his attorney.
At a hearing on May 5, 2000, the judge and counsel concluded that NERA did apply to second-degree attempted sexual assault. Therefore, with the State's consent defendant was permitted to retract his guilty plea and the matter was scheduled for trial.
On September 28, 2000, in a hearing before a different judge, counsel and the judge concurred that NERA did not apply. Therefore, defendant moved to reinstate his plea, which the judge granted. All parties agreed to proceed based upon the plea form defendant had executed on September 13, 1999. Both the judge and defense counsel questioned defendant. The following colloquy ensued with counsel:
[DEFENSE COUNSEL]: Do you understand that when you entered the guilty plea to this charge back in September of 1999, you were also advised of the applicability of the provisions of the Megan's Law statute, correct? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: And you understand that that requires you to register? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: And supervision for life, community supervision for life, do you understand that? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: . . . [T]hat was explained to you back in September of '99, correct? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: And again, you do understand that . . . will be a part of this sentence, correct? [DEFENDANT]: It has to be? [DEFENSE COUNSEL]: Yes, sir, it's the law. [DEFENDANT]: There's no way --[DEFENSE COUNSEL]: That's the law. That's part of the plea to this charge. Do you understand that? [DEFENDANT]: Okay.
The judge then immediately picked up on this line of questioning with the following colloquy:
THE COURT: Mr. Gonzalez, that's the law. Whether you plead guilty or are found guilty, it's not a discretionary thing that I have as a judge. [DEFENSE COUNSEL]: It's mandatory.
THE COURT: Certain things, when I sentence someone, . . . I do in my discretion, what I feel is proper or right under the circumstances, and there are other areas where I have no discretion. . . .
But with Megan's [L]aw, I have no discretion. You have to register as a sex offender when released from jail and then you are subject to community supervision for life. They will put you in a certain tier. And again, you can always contest that tier. You know, to see exactly what ...