On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-10-1754.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2012
Before Judges Parrillo and Maven.
Defendant Jan Nawrocki appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).
By way of background, on March 30, 2004, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, and fourth- degree shoplifting, N.J.S.A. 2C:20-11, in exchange for the State's recommendation that he be sentenced as a second-degree offender for the armed robbery. Pertinent here, defendant was advised at time of plea that he would be subject to a mandatory five-year period of parole supervision at the expiration of his sentence. On June 25, 2004, defendant was sentenced in accordance with the plea agreement as a second-degree offender to a five-year prison term, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, the court mistakenly advised at the time that "there would be a three-year period of parole supervision once [defendant] is paroled[,]" which was also reflected on the July 13, 2004 judgment of conviction (JOC). On that same date, the JOC was amended to state the correct parole supervision period of five years, which, as noted, was mandatory.
On May 6, 2010, defendant filed the instant PCR petition, seeking to withdraw his guilty plea and alleging ineffective assistance of counsel, as he was unaware that he faced a mandatory five-year period of parole supervision and had he known, he would not have pled guilty. Finding "exceptional circumstances" to relax the five-year time bar of R. 3:22-12, the PCR judge entertained the merits of defendant's ineffective assistance of counsel claim and ultimately denied relief, finding defendant's contention "clearly contradicted by the plea form and plea transcript." On this score, the PCR judge found: Question two (2) of that same supplemental [plea] form further states, "Do you understand that because you have pled 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?["] The response circled on the plea form for this question is "Yes."
The PCR judge also referred to the colloquy at time of plea between the court and defendant that reinforced this fact:
THE COURT: . . . [J]ust before we move to schedule a date for the presentence interview and sentencing, I want to make sure, [defendant], that you understand that with respect to the armed robbery count that any sentence I impose would be subject to the 85 percent rule and also which would mean that you would have to have five years of parole supervision after you were paroled on the sentence and that if you violated that parole supervision period that you could go back to State's Prison to complete that five-year parole supervision sentence. You understand that.