STATE OF NEW JERSEY v. MARK GONZALEZ (2011)

Defendant Mark Gonzalez appeals from a September 30, 2009 Law Division order denying his petition for post-conviction relief (PCR).  After an evidentiary hearing, the judge rejected defendant's claims that:  his guilty pleas to two No Early Release Act (NERA) offenses were constitutionally flawed because he was never informed that his guilty pleas would subject him to a mandatory five-year period of parole supervision;  and trial counsel rendered ineffective assistance by failing to review the discovery, failing to argue relevant mitigating factors at sentencing, failing to file an appeal of defendant's conviction and forcing defendant to plead guilty instead of exercising his right to a trial by jury.   After reviewing defendant's contentions in light of the record and applicable law, we are satisfied that the judge's findings of fact are amply supported by the record and his legal conclusions are sound.   We affirm.

I.

In a fifteen-count indictment, defendant was charged with two counts of carjacking, each on a separate date and each involving a different victim;  second-degree eluding police;  third-degree resisting arrest;  third-degree aggravated assault on a police officer and related weapons offenses.   On February 25, 2002, the State and defendant reached a plea agreement, under which defendant would plead guilty to the two counts of carjacking and the single count of second-degree eluding in return for a maximum potential sentence of fifteen years, subject to the eighty-five percent parole ineligibility term required by NERA, N.J.S.A. 2C:43–7.2.

In addition to completing the standard three-page plea form, defendant executed the “Supplemental Plea Form for No Early Release Act Cases” (Supplemental Plea Form).   Questions 1 and 2a asked defendant whether he was pleading guilty to a first or second-degree violent crime, and if he understood that by pleading guilty to “armed carjacking” he understood that he would be required to serve eighty-five percent of the sentence before becoming eligible for parole.   The word “yes” was circled beside each of those two answers.   The next question, 2b, asked:

Do you understand that by pleading guilty to these charges, the minimum mandatory period of parole ineligibility is 8 1/2 years and _ months (fill in number of years/months) and the maximum period of parole ineligibility can be 14 1/3 years 1 and _ months (fill in number of years/months) and this period cannot be reduced by good time, work or minimum custody credits?

Although the words [YES][NO] were printed directly after that question, neither one was circled.

Next was question 3, which pertained to the mandatory five-year term of parole supervision required by NERA. Question 3 on the Supplemental Plea Form asked:

Do you understand that because you have plead [sic] 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?

First Degree Term of Parole Supervision—5 years

Second Degree Term of Parole Supervision—3 years

As with question 2b, neither “YES” nor “NO” was circled, although the “5” was handwritten in the appropriate space.

The last question, question 4, related to the potential consequences of violating the period of parole supervision.   Question 4 asked:

Do you understand that if you violate the conditions of your parole supervision, that your parole may be revoked and you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed?

The word “YES” was circled.   The prosecutor, defense counsel and defendant each signed the Supplemental Plea Form.

During the plea colloquy, defendant assured the judge that he had discussed the charges as well as the plea with his attorney, his attorney had explained the charges to him, he had enough time to discuss his case with his attorney, his attorney had answered any questions he may have had, and he was satisfied with the legal representation provided by his attorney.

Next, the judge discussed the completed and signed three-page standard plea form, with defendant stating that he had read the form, discussed its terms with trial counsel, and provided the information to his counsel, who then circled the appropriate answers on the plea form.   Defendant said he understood the consequences of the plea, that his answers on the three-page plea form were true and accurate, and that no one had forced him to plead guilty.

The judge also explained the rights defendant was surrendering by pleading guilty, and he discussed defendant's sentencing exposure under the plea agreement.   The judge stated that defense counsel would argue for the minimum ten-year NERA sentence and that the State would argue for the fifteen-year NERA term permitted under the plea agreement.   Immediately thereafter, the judge asked trial counsel, “have you explained at the end of the term the parole ineligibility?”   Trial counsel answered, “Yes, I did.”   The judge stated, “And that's on the Supplemental Plea Form,” at which time trial counsel responded, “Yes, it is.”   Notably, at no time during the plea colloquy did anyone—the judge, the prosecutor or defense counsel—state that upon his release from prison, defendant would be subject to the mandatory five-year period of parole supervision required by NERA.

At the conclusion of the plea colloquy, after defendant provided a factual basis under oath for each of his three guilty pleas, the judge specifically found that there was a factual basis for each guilty plea, and that the pleas had been entered voluntarily “with the full understanding [by] Mr. Gonzalez of the charge against him, as well as the consequence[s] of the plea after full and adequate discussion with his attorney․”

At the time of sentencing on August 9, 2002, trial counsel argued that the only aggravating factor present was the need for deterrence, while defendant's lack of a prior record, the unlikelihood of his committing future offenses, his youth when he committed the crimes, the fact that he was under the influence of drugs, and his time incarcerated pending resolution of the case together merited only a ten-year term.

The judge found four aggravating factors:  the nature and circumstances of the offense, the seriousness of the harm inflicted on the victim, the risk defendant would commit another offense and the need for deterrence, N.J.S.A. 2C:44–1(a)(1), (2), (3) and (9).   As to mitigating factors, the judge found the lack of a prior criminal record, that defendant would respond affirmatively to probation and that imprisonment would entail excessive hardship to defendant and his family, N.J.S.A. 2C:44–1(b)(7), (10) and (11).   The judge sentenced defendant to concurrent fifteen-year NERA terms on the carjackings, concurrent to a seven-year term of imprisonment on the eluding charge.

Defendant did not appeal his conviction or sentence.   Rather, in July 2005, he filed the PCR petition that is the subject of this appeal.   For reasons not explained in the record, the judge dismissed defendant's PCR petition without prejudice on January 22, 2007.   Defendant re-filed the petition on February 2, 2009.   Because defendant's PCR petition alleged ineffective assistance of counsel, the judge set the matter down for an evidentiary hearing, which was conducted on September 18, 2009.

At the PCR hearing, trial counsel testified that in his thirty-seven years of practicing law, he had limited his practice to criminal cases for the vast majority of that period.   When asked to describe his representation of defendant, trial counsel explained that he reviewed the indictment with defendant, as well as all of the discovery provided by the State.   He also explained to defendant his sentencing exposure, which included a total sixty-year prison term on the two carjackings, a ten-year term on the eluding charge, and another five years each on the charges of aggravated assault on a police officer and unlawful possession of a handgun.   When asked whether he had discussed with defendant the No Early Release Act, trial counsel answered, “Absolutely.”   He also explained “the consequences of the No Early Release Act” and the “kind of possible sentence he could have been facing if he went to trial and was convicted on all of the counts of the indictment.”   He was certain that he had discussed the charges with defendant and his family “at length” because “this was a very, very serious matter.”

Trial counsel next described the process of completing the standard three-page plea form with a client.   He explained that his typical procedure included reviewing “the entire form” with the client, making sure that the client understood “the bottom line,” namely, which charges would be dismissed and the maximum sentencing exposure on the remaining counts.   In defendant's particular case, he explained to him that the State reserved the right to seek a fifteen-year NERA sentence and he would “try like heck” to persuade the judge to impose only a ten-year NERA sentence.   He stated, “we both knew that the State was going to ask for the fifteen so whatever was going to happen nobody had a crystal ball at that point.”

Turning to the Supplemental Plea Form for NERA offenses, trial counsel explained that prior to the time defendant entered his guilty plea in February 2002, he had dealt with “[q]uite a few” NERA cases and was therefore “sure” that he had explained the Supplemental Plea Form to defendant.   While he did not have a “specific recollection,” he stated, “I know what I do in every case so ․ what I'm really basing it on is what I always do.   And there was nothing here that would suggest I didn't do anything other than what I always did[.]”

As to the mandatory five-year period of parole supervision, trial counsel testified:

And I also make sure I tell him because I always point out that once you get out you're on—since it's a first-degree offense, you're going to be on five years of special parole, whereas with a second-degree offense[,] it's only three years.

Because I've had that come up before that and so I always like to make sure people understand that when you get out you're still subject to special parole and you can get more time if you violate.

When asked whether he was “particularly careful to explain the NERA consequences” to defendant, trial counsel answered “Yes.”

When asked about question 3 on the Supplemental Plea Form, which asks a defendant if he is aware that by pleading guilty to a first-degree NERA offense, he would be subject to a five-year term of parole supervision, trial counsel commented that he had written the number “5” in question 3 even though “YES” was not circled next to the question.   He stated that “as a defense attorney,” it was important to be “very careful to be sure that [his] client understood exactly what he was doing when [he] entered a plea in a case such as this.”

On cross-examination, trial counsel denied ever promising defendant that he would receive a ten-year sentence, or even telling defendant that it was more likely that he would receive such a term.   When asked whether he recalled defendant asking him to file an appeal, trial counsel indicated that his representation of defendant ended at the time of sentencing.   He did remember discussing an appeal of the sentence with defendant and his family, and filed a motion for reconsideration, which was denied.

Defendant testified on his own behalf, asserting that when defense counsel met with him in the holding cell at the court house, which defendant said was the only place he ever met with trial counsel after he was indicted, counsel merely “flip[ed] through [the discovery package] as he was talking,” but never provided defendant with his own copy despite defendant's request.   As for the proposed plea bargain, defendant claimed that trial counsel told him that if he “didn't take the plea [he] was never going to see the streets again [,][n]ever going to see the light of day” because he was facing “a hundred ninety years, something like that.”   Defendant maintained that even though the plea papers specified that the State reserved the right to seek a fifteen-year NERA sentence, trial counsel assured him the “[p]rosecutor wasn't going to contest” defense counsel's request for a ten-year sentence, which “[he] was going to get,” because he was “a first time offender.”   Defendant also maintained that trial counsel never discussed the possibility of going to trial, and never discussed any possible defenses or the strengths and weaknesses of the State's case.

As for the Supplemental Plea Form, defendant maintained that trial counsel filled it out “in front of [him]” but did not discuss any of its provisions, adding that counsel was instead “mumbling to himself” as he completed the form.   Defendant stated there was no “question and answer dialogue” about the Supplemental Plea Form. He insisted that the only reason he knew prior to entering his guilty plea that he was subject to an eighty-five percent parole ineligibility term was because he had overheard discussions among inmates in the jail about NERA and had gone to the jail law library “a little bit.”   As to the mandatory period of parole supervision, defendant asserted that trial counsel “didn't tell me anything.”   Trial counsel simply instructed him to sign the Supplemental Plea Form, and assured him that he should not worry about its provisions because “we're going to go over all this up in the courtroom.   The judge is going to go over every question.”   He only signed the Supplemental Plea Form because he trusted his lawyer “to fill out that paperwork” properly.

According to defendant, only after he began serving his sentence did he realize that he was subject to the five-year parole supervision term and that if he violated parole, he would be returned to prison for an additional period.   Had he known about the “possible extra five years that [he] would have to do in prison” if he violated the conditions of parole supervision, “it would have changed [his] mind about pleading guilty.”

After considering the testimony, Judge Austin denied defendant's PCR petition.   As for defendant's claim that trial counsel never informed him of the mandatory five-year period of parole supervision, the judge found defendant's testimony not credible “in many ways,” because defendant signed and initialed the plea form, and because it was “shock[ing]” that defendant would claim that trial counsel had “guarantee[d]” a ten-year sentence.

Turning to the Supplemental Plea Form for NERA offenses, the judge noted that while certain questions did not include a circled answer, there were numbers that had been written into questions 2b and 3 regarding the number of years defendant would have to spend in prison depending upon the sentence imposed, and regarding the length of the parole supervision period, which signified that trial counsel had, as he claimed, explained all the NERA consequences to defendant.   In contrast to defendant, whom the judge found to be not credible, the judge found trial counsel to be “extremely believable and credible.”   The judge specifically found that trial counsel discussed the five-year period of parole supervision with defendant as well as the consequences of violating such parole.   Last, the judge concluded defendant “absolutely understood and knew that.”

Next, Judge Austin analyzed defendant's claims concerning trial counsel's representation in connection with plea negotiations and sentencing.   The judge observed that defendant received “a very, very favorable plea bargain,” and held that trial counsel had functioned effectively.   The judge also found that in light of defendant's enormous sentencing exposure had he gone to trial and been found guilty, defendant “was not very persuasive today” when he claimed that had he known of the period of parole supervision, he would not have pled guilty.   At the conclusion of the proceedings, the judge stated, “there is no question in my mind based upon the credibility of the witnesses that I must deny this ․ application for post-conviction relief.”

On appeal, defendant raises the following claims:

I.  THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST–CONVICTION RELIEF AS DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA OF GUILTY AS THE TRIAL JUDGE AND TRIAL COUNSEL FAILED TO INFORM DEFENDANT ABOUT THE PAROLE CONSEQUENCES OF HIS “NO EARLY RELEASE ACT” SENTENCE.

II. THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST–CONVICTION RELIEF AS THE CONDUCT OF TRIAL COUNSEL WAS INEFFECTIVE.

II.

“Before accepting a guilty plea, a trial judge must ensure that the defendant enters the plea voluntarily and with a correct understanding of its penal consequences.”  State v. Freudenberger, 358 N.J.Super. 162, 167 (App.Div.2003) (citation omitted).  “Being under parole supervision beyond the term of the imposed sentence is itself a significant penal consequence.   More significant is the possibility that upon a parole violation a defendant could be required to serve additional time after expiration of the specified sentence.”  Id. at 169.   Therefore, “[a] defendant pleading guilty to a NERA offense must be informed of these potential consequences—‘the worst to expect’—to render the plea knowing and voluntary.”  Id. at 170.   Thus, if a court finds that the defendant did not know of the mandatory period of parole supervision, the defendant is entitled to withdraw his or her guilty plea.   Ibid. However, “[i]f it is determined that defendant knew before h[is] plea of the NERA parole supervision provision, understood it, and pled guilty, the failure of the trial judge to inform [the defendant] of it would not be prejudicial to defendant and would not justify withdrawal of [the defendant's] plea.”  Ibid. (citation omitted).   Thus, as is evident from our decision in Freudenberger, a judge's failure to inform a defendant during the guilty plea colloquy of the mandatory parole supervision required by NERA will not entitle a defendant to vacate his guilty plea, so long as the defendant was aware of that requirement from other sources, such as from trial counsel or from his own experience with a previous NERA sentence.

In State v. Johnson, 182 N.J. 232, 240–41 (2005), the Supreme Court expressly approved our conclusion in Freudenberger that NERA's mandatory period of parole supervision “constituted a direct, penal consequence” about which a defendant must be informed at the time he enters his guilty plea.   The Court emphasized, however, that even if a defendant is able to demonstrate that he was unaware of the mandatory parole supervision period, that fact, standing alone, is not sufficient to entitle the defendant to vacate his guilty plea.   Id. at 241.   To vacate a plea, a “ ‘defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by enforcement of the agreement.’ ”  Id. at 241–42 (quoting State v. Howard, 110 N.J. 113, 123 (1988)).   In particular, a defendant must demonstrate that had he known of the omitted information, he would not have pled guilty.  Id. at 242.

The record demonstrates that after considering the testimony of both trial counsel and defendant, Judge Austin concluded that before defendant entered his guilty plea he was aware of both the requirement that he serve eighty-five percent of the sentence without parole, and was aware that he was subject to a mandatory five-year period of parole supervision at the conclusion of his incarceration.   That conclusion was based upon the trial court's assessment of the credibility of the witnesses, and is amply supported by the testimony at the PCR hearing.   It is therefore entitled to our deference.  State v. Locurto, 157 N.J. 463, 470–71 (1999) (holding that when a trial judge's findings of fact are supported by sufficient, credible evidence in the record, they are binding upon a reviewing court).

In short, because the record fully supports Judge Austin's conclusion that defendant was aware of the mandatory period of parole supervision before he entered his plea of guilty, neither Freudenberger, supra, nor Johnson, supra, entitled defendant to the vacating of his guilty plea.   We thus reject the claim advanced in Point I.

III.

In Point II, defendant maintains that he is entitled to post-conviction relief because trial counsel rendered ineffective assistance.   To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984).   First, defendant must show that defense counsel's performance was indeed deficient.   Second, defendant must demonstrate that there exists “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.   The precepts of Strickland have been adopted by New Jersey.  State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed.  Fritz, supra, 105 N.J. at 61.   Defendant must demonstrate “how specific errors of counsel undermined the reliability” of the proceeding.  United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed.2d 657, 668 n.26 (1984).

In support of his claim that he received ineffective assistance, defendant asserts that trial counsel failed to review discovery with him, failed to argue relevant mitigating factors at sentencing, failed to file an appeal and “forced” him to accept a negotiated plea of guilty rather than go to trial.   Judge Austin denied these claims, which were raised in defendant's pro se submission, as lacking any support.   As the record makes clear, defendant cannot, and has not, satisfied the demanding standard established by Strickland /Fritz for claims of ineffective assistance of counsel.

Judge Austin accepted as credible trial counsel's testimony that he thoroughly reviewed the case with defendant, including potential defenses and why they were inapplicable.   The judge also accepted defense counsel's testimony that even though he was retained solely for the trial, he had agreed to file a motion for reconsideration of sentence.   As for defendant's knowledge of his right to appeal, the record establishes that at the conclusion of the sentencing proceeding, Judge Austin informed defendant of his right to appeal, and that defendant did nothing for three years until filing the present PCR petition.

As for defendant's claim that trial counsel “forced” him to plead guilty, during the plea colloquy defendant acknowledged that the decision to plead guilty was his own decision and he was well aware of his right to insist upon a trial by jury.   Finally, the record demonstrates that contrary to defendant's assertions, trial counsel argued in favor of four mitigating factors at the time of sentencing.   Thus, the record amply supports the judge's conclusion that trial counsel did not render ineffective assistance, and that counsel's representation of defendant satisfied the applicable Sixth Amendment standard.   We thus reject the claim defendant advances in Point II.

Affirmed.

FOOTNOTES

FN1. The notation that defendant faced a maximum parole ineligibility term of 14 1/3 years on a fifteen-year sentence was obviously a mathematical error.   Defendant makes no argument concerning this error, and it has no impact on the issues on appeal..  FN1. The notation that defendant faced a maximum parole ineligibility term of 14 1/3 years on a fifteen-year sentence was obviously a mathematical error.   Defendant makes no argument concerning this error, and it has no impact on the issues on appeal.

PER CURIAM