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State v. Burke

Superior Court of New Jersey, Appellate Division

May 23, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DANIEL BURKE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2012

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 05-07-1000 and 05-01-0023.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Sarah M. Mielke, Special Assistant Prosecutor, on the brief).

Before Judges Graves and Espinosa.

PER CURIAM.

Defendant Daniel Burke appeals from a January 5, 2011 order denying his petition for post-conviction relief (PCR). Defendant argues he "is entitled to a hearing or a sentencing remand because trial counsel was ineffective for failing to assure that [defendant] understood the parole consequences of his plea." For the reasons that follow, we affirm.

Pursuant to a negotiated plea agreement encompassing two separate indictments, defendant pled guilty to the following charges: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count two of Indictment No. 05-01-1000); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count ten of the same indictment); two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts eight and eleven of the same indictment); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(c) (count one of Indictment No. 05-01-0023). In exchange, on Indictment No. 05-07-1000, the State agreed to dismiss the remaining charges and to recommend a fifteen-year term with an eighty-five percent period of parole ineligibility for first-degree aggravated sexual assault (count two); a concurrent seven-year term with an eighty-five percent period of parole ineligibility for second-degree sexual assault (count ten); and, concurrent seven-year flat terms for the second-degree endangering offenses (counts eight and eleven), consecutive to counts two and ten. The State further agreed to recommend a nine-month sentence for fourth-degree aggravated assault, concurrent to the other sentences. Thus, the State recommended an aggregate twenty-two-year custodial term, fifteen years of which were subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The plea form signed by defendant and his attorney stated defendant's "minimum mandatory period of parole ineligibility is 8 years and 8 months, " and defendant's "maximum period of parole ineligibility can be 17 years and 8 months." Moreover, when questioned by the court, defendant testified as follows:

COURT: Now, you've heard the prosecutor set forth the terms of the plea agreement, and that is that the State will recommend a sentence on the first-degree aggravated sexual assault not to exceed fifteen years in New Jersey State Prison.
DEFENDANT: Yes.
COURT: And on the second-degree sexual assault, seven years in New Jersey State Prison ...

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