Opinion
DOCKET NO. A-2666-10T3
07-05-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH FIGUEROA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment No. 02-08-1780.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on
the brief).
Theodore F. L. Housel, Atlantic County
Prosecutor, attorney for respondent (Julie
H. Horowitz, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
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). Defendant responded affirmatively.
N.J.S.A. 2C:43-6.4 was enacted as part of "Megan's Law," L. 1994, c. 130. See Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:43-6.4 (2011). After defendant's guilty plea and sentence, the Legislature amended this provision to provide for "a special sentence of parole supervision for life," as opposed to CSL. Ibid.
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. 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 . . . ."
The indictments are not in the record but are referenced in the PCR judge's written opinion.
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 relevant information with his attorney prior to pleading guilty. He denied defendant's PCR petition.
For reasons unexplained by the record, the order denying defendant's PCR petition was not filed until October 6, 2010, and was entered by another judge "for" Judge Garofolo who had retired in the interim.
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Before us, defendant raises the following argument:
POINT IWe have considered this argument in light of the record and applicable legal standards. We affirm substantially for the reasons expressed in Judge Garofolo's written opinion. We add only the following comments.
THE MOTION COURT ERRED IN DENYING PLEA WITHDRAWAL WITHOUT HOLDING AN EVIDENTIARY HEARING, BECAUSE THE DEFENDANT WAS NOT SUFFICIENTLY ADVISED OF THE "COMMUNITY SUPERVISION" CONSEQUENCES OF HIS PLEA
We agree with Judge Garofolo that defendant's petition was time-barred. Defendant argues that the five-year time limit contained in Rule 3:22-12 should be relaxed. However, Judge Garofolo noted that in March 2005, when he was placed on parole originally, defendant executed a form specifically explaining the "General Conditions" associated with CSL. Inexplicably, defendant never sought to withdraw his guilty plea based upon his lack of knowledge regarding CSL's conditions until nearly four years later. Judge Garofolo concluded defendant's "real motivation for seeking to withdraw his guilty plea . . . arises as a result of the[s]e subsequent indictments." We find no reason to relax the time constraints under the facts presented.
We also agree with Judge Garofolo's conclusion regarding the merits of defendant's request. "[C]ommunity supervision for life . . . is a penal and not a collateral consequence of the sentence[,]" of which a defendant must be advised prior to pleading guilty. State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003). In State v. Williams, 342 N.J. Super. 83, 86 (App. Div.), certif. denied, 170 N.J. 207 (2001), which Judge Garofolo cited, we reversed the trial judge's decision permitting the defendant to withdraw his guilty plea in circumstances strikingly similar to this case.
In Williams, supra, 342 N.J. Super. at 91-92, we concluded that the colloquy at the plea allocution hearing, along with the plea form executed by the defendant, satisfied the requirement of Rule 3:9-2 that a defendant understand the consequences of his guilty plea. We also stated: "The fact that defendant first learned of the specific details of community supervision for life when he signed the terms and conditions form two years after being sentenced is inconsequential." Id. at 92. We also distinguished the facts in Williams from those presented in our earlier decision in State v. Horton, 331 N.J. Super. 92 (App. Div. 2000), which defendant relies upon in this case. We noted that the defendant in Williams "was in no way misinformed, as was Horton, of the consequences of his plea, and he was informed adequately of the material aspects flowing from Megan's Law." Williams, supra, 342 N.J. Super. at 92. See also Jamgochian, supra, 363 N.J. Super. at 226 (noting the defendant in that case "contend[ed] not just that he was uninformed but that he was misinformed," like the defendant in Horton, but unlike the defendant in Williams).
Although in this case the plea form executed by defendant did not specifically refer to CSL, and the court file did not contain any supplemental form actually executed by defendant, we agree with Judge Garofolo that defendant was fully informed that CSL was a consequence of his guilty plea. Defendant's own certification in support of his PCR petition only claimed that his attorney failed to review "the CSL provisions" with him. In short, defendant pled guilty "with an understanding of the . . . consequences of the plea." R. 3:9-2.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION