STATE OF NEW JERSEY v. REYNALDO CORRIANO

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2244-07T4

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

REYNALDO CORRIANO,

 

Defendant-Respondent.

________________________________

October 19, 2010

 

Submitted: May 19, 2010 Decided:

 

Judges Payne and C.L. Miniman.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1306.

 

Yvonne Smith Segars, Public Defender, attor ney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Teresa M. Garvey, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Reynaldo Corriano appeals from the denial of his petition for post-conviction relief (PCR) seeking to withdraw his guilty plea because he was not fully apprised of the penal consequences of his plea, and his plea counsel was ineffective in this respect. We affirm in part, and reverse and remand in part.

Defendant was charged in 2001 with second-degree conspiracy to commit first-degree robbery, contrary to N.J.S.A. 2C:5-2; third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b; second-degree posses sion of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1).

On January 24, 2003, defendant pled guilty to first-degree armed robbery. There was no agreed sentence, but the State rec ommended twenty years with eighty-five percent of the sentence to be served; defendant agreed to waive his right to appeal. During the judge's voir dire of defendant, he inquired whether defendant's counsel had gone over the plea agreement with him, to which defendant replied, "Yes, sir." The same reply was given to the judge's inquiry into whether defendant's counsel answered all of defendant's questions and whether he was satisfied with counsel.

On further questioning about the plea agreement, defendant testified that he went over the plea agreement with his attor ney, who asked him questions and filled out the form. Defendant answered the questions truthfully and stated that he understood each and every question. The following exchange then took place:

THE COURT: Okay, I want you to take a look at the agreement. Now, there have been no promises made, but I understand that [the prosecutor] is going to recommend, if you cooperate fully against the co-defendant, a sentence of 20 years, 85 percent without parole. [Defendant's counsel] is certainly entitled to argue for less, but that's what the State will be recommending. Depending on the degree of cooperation, [the sentence will be] anywhere from 20 to 30 years. You understand that I'm not bound by any of these numbers, do you understand that?

 

THE DEFENDANT: Yes.

 

THE COURT: Okay, now did you initial the first couple pages and sign the last page in your handwriting?

 

THE DEFENDANT: Yes, sir.

 

Defendant then acknowledged that he was facing life impris onment, twenty-five years without parole, if he went to trial. He testified to the elements of the crime, admitting that he and his co-defendants went into a laundry to rob Dong Xiang Zhang and Qui Zhou; one of his co-defendants, Jose Ortiz, had a gun; and both co-defendants roughed up Zhang while holding the gun to his head. As they were leaving, Qui grabbed defendant and he hit her. She fell to the ground and suffered serious bodily injury. He admitted knowing that Ortiz had a gun before they went into the laundry.

The plea form that was reviewed by defendant on the day of his plea was comprised of four pages. The first three pages were the standard plea form, which provided that the State's recommended sentence was "open, with recommendation of not less than 20 years w/85% and defendant cooperation w/co[-]defendant case; & stipulating to persistent offender."

The fourth page was the "Supplemental Plea Form for No Early Release Act (NERA) Cases (N.J.S.A. 2C:43-7.2)." In response to Question One, defendant's counsel circled "yes," indicating that defendant understood that his plea to first-degree robbery was subject to an eighty-five percent parole-ineligibility period. Counsel also circled "yes" in response to Question Three, indicating that defendant understood that if he violated parole supervision, his parole could be revoked, sub jecting him to a return to prison even if he completed serving his sentence.

However, the second question was not answered. That question appears as follows:

2. Do you understand that because you have pled guilty to these charges the court must impose a 3 5 year term of parole super vision and that term will begin as soon as you complete the sentence of incarceration? [Yes] [No]

First Degree Term of Parole Supervision - 5 years

 

Second Degree Term of Parole Supervision - 3 years

 

Although there is a place to circle "yes" or "no" on the form, neither answer was circled. Defendant signed at the bottom of this one-page supplemental plea form.

Defendant was sentenced on March 28, 2003. The State rec ommended twenty years, eighty-five percent of which would have to be served before defendant was eligible for parole. The judge explained his reasons for imposing a twenty-year term:

[A]lthough I find the aggravating factors preponderate the mitigating factors, for extended term this is the minimal sentence. The No Early Release Act [(NERA), N.J.S.A. 2C:43-7.2,] does apply in this case. It is an open plea, and I'm going to go along with the [S]tate's recommendation. And I understand that it may not be fair in [defendant's] eyes, but in the overall scheme of things[,] this is an extremely fair agreement.

 

[Defendant] will be committed to cus tody and commission of the Department of Corrections for a term of 20 years, 85 per cent [of] which must be served without the possibility of parole. After the custodial sentence he must serve five years on parole after that. (Emphasis added.)

 

This was the first mention on the record of a five-year parole period. The judge then ordered restitution and imposed a variety of fines and penalties. He also advised defendant that he had a right of appeal despite his waiver, but if he did so, the State had a right to "withdraw from its plea agreement, reinstate all the dismissed counts, and if you're convicted at trial you could receive . . . 75 years without parole." Defen dant said he understood and stated that he had no questions. The judgment of conviction was entered that day. It specifi cally provided that "UPON RELEASE DE[F]ENDANT MUST SERVE FIVE (5) YEARS PAROLE SUPERVISION." Defendant did not appeal.

Defendant filed his petition for PCR on October 2, 2006, when he filed an unverified petition in the form of a brief. On August 16, 2007, his assigned counsel submitted a supplemen tal brief and defendant's certification in which defendant averred that his plea counsel completed the plea forms; that he expected to be sentenced to twenty years, eighty-five percent without parole; and that his sentence would end upon his release from prison. He further certified that he did not "recall any one telling me, or explaining to me, either at the time I entered my plea or at the time of sentencing, that I would have to serve a 5-year parole term after my release from prison." He stated that he did not recall hearing of this until he began to serve his sentence, which he believes occurred after receiving a letter from the Classification Department in Trenton. Finally, he asserted, "Had I known that I have to serve a 5-year parole term following my release to prison, I would not have accepted the plea agreement."

In the briefs submitted by defendant and his PCR counsel they argued that the record clearly showed that defendant was not fully aware of the penal consequences of his plea and should be permitted to withdraw it. Defendant urged that no one, including his attorney, ever assured that he understood the parole requirement mentioned by the judge during sentencing. He maintained that he was never told that he could be returned to prison and serve more time than his original sentence if he violated parole. He contended that he was entitled to withdraw his plea and obtain PCR.

The State opposed any relief under Rule 3:22-3 because these issues could have been raised on direct appeal, and appel late review or a motion incident to the proceedings was still available. Additionally, it urged that defendant had failed to show that his plea was not knowing, intelligent, and voluntary, requiring denial of his petition. Next, the State argued that defendant was fully aware of the five-year parole term because he signed the trial memo on December 9, 2002, and under Rule 3:9-1(e)(2), he would have been advised of his sen tencing exposure if convicted. The State also argued that defendant was facing a three-year term of parole if he was released after serving eighty-five percent of his sentence even without application of NERA; thus, the two-year difference could hardly be material.

The PCR judge heard argument on the petition after which he placed his decision on the record:

Candidly, and preliminarily, I struggle with whether or not this is an issue that would or would not be procedurally barred by the [a]ppellate [c]ourt by way of a direct appeal. I'm satisfied that there really isn't anything different. Granted, [defense counsel] raised the issue of the certifica tion of [defendant] but in essence, it is identical to what the facts are in the record as it relates to . . . the time the plea was entered and the sentencing that you mentioned. I'm satisfied . . . procedurally that it should be denied.

 

In the event that an appeal [is] taken, as I assume there is a likelihood, let me deal with the matter substantively. At this point in time, I do not see any showing that the plea was not . . . entered knowingly, intelligently and voluntarily. With regard to the five-year Parole Supervision period being imposed, I'm satisfied that by reason of the fact that Question . . . Two was filled in but not answered [and] Question Three was answered that at least on its face he understood the ramifications of pleading guilty.

 

I am denying that aspect . . . without prejudice. If there is something further that you can get from the [plea] attorney or per haps subpoena him, . . . if he is not being cooperative, I may deal with that at a subsequent time.

 

So, procedurally, it is denied. Sub stantively, it is denied without prejudice.

 

An order denying PCR was entered on September 27, 2007. This appeal followed. Defendant raises the following issues for our consideration:

POINT I THE TRIAL COURT ERRED IN DENYING MR. CORRIANO'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS WHERE MR. COR RIANO'S REQUEST FOR RELIEF COULD NOT HAVE BEEN RAISED IN ANY PRIOR PROCEEDING.

 

A. MR. CORRIANO'S CLAIM COULD NOT HAVE BEEN REASONABLY RAISED IN ANY PRIOR PROCEEDING.

 

B. MR. CORRIANO'S PCR PETITION SEEKING TO WITHDRAW HIS GUILTY PLEA WAS BASED UPON A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT II THE PCR COURT ERRED IN DENYING MR. CORRIANO'S PETITION FOR POST-CONVICTION RELIEF BASED ON HIS APPARENT CLAIM OF INEF FECTIVE ASSISTANCE OF COUNSEL, WHERE IT WAS SHOWN THAT TRIAL COUNSEL FAILED TO ADVISE MR. CORRIANO THAT HIS PLEA OF GUILTY TO THE CHARGES REQUIRED THAT HE BE SENTENCED TO A FIVE-YEAR PERIOD OF PAROLE SUPERVISION TO BE SERVED AFTER COMPLETING HIS CUSTODIAL SENTENCE. (NOT RAISED BELOW).

 

POINT III MR. CORRIANO DID NOT RECEIVE EFFECTIVE ASSISTANCE OF PCR COUNSEL IN THAT COUNSEL FAILED TO RAISE CERTAIN ISSUES IN THE SUPPLEMENTAL PETITION FOR POST-CONVICTION RELIEF.

 

POINT IV THE TRIAL COURT FAILED TO SATISFY THE REQUIREMENTS OF RULE 3:9-2 WHEN TAKING MR. CORRIANO'S PLEA. (NOT RAISED BELOW).

 

POINT V THE PCR COURT IMPROPERLY DENIED MR. CORRIANO'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING IN THIS MATTER.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, id. at 420-21 (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)).

However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

PCR is governed by Rule 3:22. The Rule specifically describes the grounds that are cognizable for PCR:

(a) Substantial denial in the convic tion proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

 

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

 

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging the imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law shall be filed pursuant to R. 3:21-10(b)(5).

 

(d) Any ground heretofore available as a basis for collateral attack upon a convic tion by habeas corpus or any other common-law or statutory remedy.

 

[R. 3:22-2.]

 

The scope of the issues that can be raised under Rule 3:22-2 is limited by other provisions of Rule 3:22. First, PCR "is not . . . a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending." R. 3:22-3.

Second, a ground for relief that was not raised in the con viction proceedings or any appeal from the conviction "is barred from assertion in a proceeding under this rule." R. 3:22-4(a). There are, however, three exceptions to the general rule if "the court on motion or at the hearing finds:

(1) that the ground for relief not pre viously asserted could not reasonably have been raised in any prior proceeding; or

 

(2) that enforcement of the bar to pre clude claims, including one for ineffec tive assistance of counsel, would result in fundamental injustice; or

 

(3) that denial of relief would be con trary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

 

A ground could not reasonably have been raised in a prior proceeding only if defen dant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence.

 

[Ibid.]

 

Issues that could and should have been raised on direct appeal from the defendant's conviction are barred by Rule 3:22-4(a) unless the exceptions to the Rule have been established. See Rule 3:22-4(a)(1) to (3). Where the exceptions do not apply, consideration of such issues is properly barred. State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000); State v. Morales, 120 N.J. Super. 197, 200 (App. Div.) certif. denied, 62 N.J. 77 (1972); State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971).

We have found no case that has applied the bar of Rules 3:22-3 and 3:22-4 to a PCR application where, as a condition of the defendant's plea, the right to appeal has been waived, or if exercised, all charges against the defendant would automatically be restored irrespective of the merits of the appeal. Although it might be entirely reasonable in such circumstances to find an exception to the bar on that ground alone, it is not so here. Defendant seeks to withdraw his plea, the very outcome which would result from an appeal. As a consequence, defendant must establish that his claims fall within one of the exceptions to Rule 3:22-4.

Defendant claims, among other things, that the trial court failed to satisfy the requirements of Rule 3:9-2 when taking his plea in that the judge did not inform him that he would be sub ject to a five-year period of parole supervision after comple tion of his sentence. Indeed, Rule 3:9-2 requires a judge tak ing a plea to determine that the defendant has "an understanding of . . . the consequences of the plea." R. 3:9-2. This requires the judge to "ensure that defendant [has been] informed of the direct penal consequences of the plea." Pressler, Cur rent N.J. Court Rules, comment 1.4.1 on R. 3:9-2 (2011). NERA's parole provisions are a direct, penal consequence of a plea. State v. Johnson, 182 N.J. 232, 241 (2005); State v. Kovack, 91 N.J. 476, 482-84 (1982).

This is an issue that could have been raised on direct appeal. Defendant learned of this penal consequence at sentencing and, again, several months after he was sentenced. He still had time to appeal nunc pro tunc at that time. This claim does not fall within two of the exceptions to Rule 3:22-4 because the issue could have been raised on direct appeal, and denial of relief would not be contrary to a new rule of constitutional law. R. 3:22-4(a)(1), (3).

We are also satisfied that denial of relief would not be a fundamental injustice, especially where defendant did not raise this issue before the PCR judge. R. 3:22-4(a)(2). It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). This is particularly so when the opportunity to present the question or issue to the trial court was readily available. See Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002).

We come to a different conclusion with respect to defen dant's claims of ineffective assistance of plea counsel. Such claims generally fall within the first exception to Rule 3:22-4(a): "the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding." R. 3:22-4(a)(1). Additionally, to the extent that defendant asserts his plea counsel was ineffective, his petition for PCR falls within the second exception: "enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice." R. 3:22-4(a)(2).1

Until defendant learned of the five-year parole term, he had no reason to suspect that his counsel was ineffective in advising him of the penal consequences of the plea. The allegations made by defendant respecting his counsel are based on evidence outside the record and should be heard in a PCR application, Preciose, supra, 129 N.J. at 470-71; State v. Dixon, 125 N.J. 223, 262 (1991); State v. Walker, 80 N.J. 187, 194 (1979), if he has made out a prima facie case of inef fective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

To set aside a guilty plea based on ineffec tive assistance of counsel, a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases," Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973); and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." Hill [v. Lockhart], 474 U.S. [52,] 59, 106 S. Ct. [366,] 370, 88 L. Ed 2d [203,] 210 [(1985)].

 

[State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).]

 

The allegation that his counsel failed to inform him of the penal consequences of his plea certainly falls outside "the range of competence demanded of attorneys in criminal cases." Tollett, supra, 411 U.S. at 266, 93 S. Ct. at 1608, 36 L. Ed. 2d at 243 (citation and internal quotations omitted); Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (citation and internal quotations omitted). However, we cannot determine with any certainty that such a failure occurred, particularly since, in connection with question 2 of NERA plea form, the term of parole was entered by hand and then changed, even though no answer to the question was recorded.

The record before us also does not permit us to deter mine whether "there is a reasonable probability that, but for counsel's errors, [defendant] would not have [pled] guilty and would have insisted on going to trial." Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210 (footnote omitted). Defendant has certainly asserted that this is so, which is sufficient for a prima facie case under the second prong of Strickland, but the inquiry does not end there. The assessment of whether a reason able probability exists that defendant would have insisted on going to trial necessarily requires, at a minimum, consideration of the strengths and weaknesses of his defense to the charges brought against him, the likelihood of conviction on lesser-included offenses, and the penal consequences in light of all of the facts. Only then can the PCR judge determine whether there was a reasonable probability that defendant would not have pled to first-degree robbery.

The attorney's testimony is certainly required to determine and evaluate these facts, as is the testimony of defendant. Preciose, supra, 129 N.J. at 462. As a result, we are remanding this matter to the PCR judge, who shall conduct an evidentiary

hearing and determine whether defendant is entitled to withdraw his plea.

Affirmed in part and reversed and remanded in part.

1 We are satisfied that Rule 3:22-3 would not be a bar because it has for some time been clear that it does not apply to claims of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 460 (1992) ("Ineffective-assistance-of-counsel claims are particularly suited for post-conviction relief because they often cannot reasonably be raised in a prior proceeding." (citations omitted)).