On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-08-1780.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012 -
Before Judges Messano and Kennedy.
On November 7, 2002, defendant Joseph Figueroa pled guilty to Atlantic County Indictment No. 02-08-1780-C charging him with second-degree sexual assault, N.J.S.A. 2C:14-2(c). In return, the State agreed that defendant would be sentenced as a third- degree offender, N.J.S.A. 2C:44-1(f)(2), and it would recommend a three-year period of incarceration.
At the time he pled guilty, trial counsel told the judge he had "read . . . all the questions" on the plea forms to defendant, and "apprised [defendant] of the Megan's Law involved in this." Counsel told the judge that defendant "memorialized it by signing in two places for the Megan's Law . . ., and [defendant] initialed the rest of them." Defendant was placed under oath and asked by the judge if he understood that he "would be the subject of community supervision for life [(CSL)]," N.J.S.A. 2C:43-6.4(a).*fn1 Defendant responded affirmatively.
On February 14, 2003, defendant was sentenced in accordance with the plea bargain. The judge again told defendant that he was subject to CSL and further advised defendant of his right to appeal.
Defendant was subsequently charged in three indictments with violations of CSL and the registration and notification provisions of Megan's Law.*fn2 On January 28, 2009, defendant moved for post-conviction relief, specifically seeking to withdraw his guilty plea and dismissing these subsequent indictments. The motion was supported by defendant's affidavit in which he stated that trial counsel "forgot to review with me the CSL provisions and if I had known about those requirements, I would not have entered [my] guilty plea . . . ."
Oral argument on defendant's motion took place on April 3, 2009, before now-retired judge Albert J. Garofolo, who was not the trial judge. PCR counsel argued that the trial judge failed to explain to defendant "the consequences of his community supervision for life prior to or at the time he entered his plea." PCR counsel also noted "there may have been ineffective assistance" because trial counsel failed to "go over" this with defendant.
In a thorough written opinion, Judge Garofolo first observed that, to the extent defendant claimed his sentence was illegal, the petition was not time-barred. See R. 3:22-12 (2009) ("A petition to correct an illegal sentence may be filed at any time."). However, Judge Garofolo correctly noted that defendant's sentence was not illegal because it was less than the statutory maximum for sexual assault, and CSL was required pursuant to N.J.S.A. 2C:43-6.4(a). Therefore, defendant's argument was not cognizable on PCR. See State v. Acevedo, 205 N.J. 40, 47 (2011) (issues that do not relate to sentence "'legality'" are not cognizable on PCR); see also State v. Flores, 228 N.J. Super. 586, 595 (App. Div.) ("While an 'illegal' sentence is correctable at any time, . . . this limited exception to the general rule should be confined to cases in which the quantum of the sentence imposed is beyond the maximum provided by law or where the term set by the court is not authorized by any statutory provision."), certif. denied, 115 N.J. 78 (1989).
Judge Garofolo concluded that the petition was time-barred because it was not filed within five-years of the date of conviction. See R. 3:22-12(a) (2009). The judge nonetheless considered the merits of defendant's claim.
Judge Garofolo observed that the "crux" of defendant's argument was that although he was informed about CSL, "he did not receive the Additional Questions for Certain Sexual Offenses form," which provided details of applicable special sentencing provisions regarding Megan's Law, including CSL. The judge noted that the supplemental plea form containing this information could not be located in the court's file.
Nonetheless, the judge cited to the transcript of the plea proceedings, as well as defendant's pre-sentence investigation report, which stated that CSL and community registration and notification under Megan's Law were "special sentencing provisions" that applied. Judge Garofolo concluded that defendant had been adequately advised by the trial judge and had reviewed all ...