STATE OF NEW JERSEY v. WILLIAM JUSTICE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0299-05T4299-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM JUSTICE,

Defendant-Appellant.

_____________________________________________________________

 

Submitted: September 27, 2006- Decided November 20, 2006

Before Judges Winkelstein and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 00-01-0037.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On January 5, 2000, pursuant to a negotiated plea, defendant, William Justice, pled guilty to second-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(1). At sentencing, in accordance with the plea agreement, the judge imposed a five-year term with a mandatory eighty-five percent period of parole ineligibility and a three-year period of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2a.

We considered defendant's direct appeal pursuant to Rule 2:9-11 and affirmed his sentence. State v. Justice, No. A-3113-01 (App. Div. June 5, 2002). Defendant filed a pro se petition for post-conviction relief on December 3, 2002; on June 17, 2005, appointed counsel filed a verified amended petition for post-conviction relief. On July 14, in a comprehensive written opinion, Judge Cook denied defendant's petition.

On appeal from that determination, defendant raises the following legal argument:

DEFENDANT'S "GOOD TIME" AND WORK CREDITS SHOULD HAVE REDUCED HIS MANDATED THREE-YEAR SUPERVISION TERM, BECAUSE THAT PORTION OF NERA PRECLUDING A REDUCTION DEPRIVED DEFENDANT OF HIS LIBERTY WITHOUT DUE PROCESS, THEREBY VIOLATING THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

We have carefully reviewed the record in light of this contention and the applicable legal standards. Defendant argues that his appellate counsel provided ineffective assistance because he failed to raise this issue on direct appeal. For the reasons that follow, we conclude defendant has not demonstrated that appellate counsel's performance was deficient so that, but for counsel's alleged errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 52-53 (1987). We affirm substantially for the reasons set forth in Judge Cook's opinion and add only these brief comments.

We have previously determined that commutation and work credits could not be applied to reduce the mandatory minimum period of parole ineligibility of any NERA sentence. See State v. Webster, 383 N.J. Super. 432, 437 (App. Div.) (It was the "clear intent by the Legislature when enacting NERA . . . to require defendants . . . to serve the full eighty-five percent period of their parole disqualification prior to any release from custody."), certif. granted, ___ N.J. ___ (2006).

We have also previously considered and rejected the constitutional dimension of defendant's argument. In Merola v. Dep't. of Corr., 285 N.J. Super. 501 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996), we denied the defendant's Constitutional Due Process claim that work and commutation credits should be applied to reduce the period of parole ineligibility of his murder sentence under N.J.S.A. 2C:11-3b. We stated, "New Jersey has not denied a constitutionally protected right under the Due Process Clause by refusing to grant reduction of its inmates' mandatory minimum sentences through commutation and work credits." Id. at 514.

Regarding application of the credits to reduce NERA's mandatory period of post-release parole supervision, we expressly considered and rejected the argument in Salvador v. Dep't. of Corr., 378 N.J. Super. 467 (App. Div.), certif. denied, 185 N.J. 295 (2005). "[T]he Legislature has spoken in clear and unambiguous terms that a person convicted of a NERA offense must serve a . . . term of parole supervision." Id. at 469.

Affirmed.

 

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4

A-299-05T4

November 20, 2006