STATE OF NEW JERSEY v. ERIC S. CLARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5816-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC S. CLARK,

Defendant-Appellant.

__________________________________________________________

November 3, 2010

Submitted October 19, 2010 - Decided

Before Judges Skillman and Parrillo.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-04-0208.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant pled guilty pursuant to a plea bargain to attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), and aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(4). These convictions were based on an incident in which defendant broke into the victim's apartment, stabbed her a number of times with a knife, inflicting serious injuries, and then sexually assaulted her. The trial court sentenced defendant in accordance with the plea bargain to concurrent twenty-year terms of imprisonment. The sentence for aggravated sexual assault was made subject to the 85% period of parole ineligibility mandated by the No Early Release Act. N.J.S.A. 2C:43-7.2.

We heard defendant's appeal on an excess sentence calendar, see R. 2:9-11, and affirmed his sentence as not excessive. State v. Clark, No. A-4176-00T4 (Feb. 6, 2002). The Supreme Court denied defendant's petition for certification. 172 N.J. 357 (2002).

On December 7, 2007, nearly eight years after entry of his judgment of conviction, defendant filed a petition for post-conviction relief. The trial court denied the petition as untimely in an oral opinion delivered on February 23, 2009.

On appeal, defendant argues:

POINT I:

THE COURT ERRED IN RULING THAT DEFENDANT'S PETITION WAS TIME-BARRED.

POINT II:

THE FINAL JUDGMENT OF CONVICTION WAS NOT ENTERED ON FEBRUARY 25, 2000. (Not Raised Below).

POINT III:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL. (Not Raised Below).

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the trial court's oral opinion. Defendant's claim that the NERA component of his sentence was illegal because he was not afforded a hearing on the applicability of NERA is plainly without merit. The factual basis defendant provided for his plea unequivocally demonstrated that his conviction for aggravated sexual assault subjected him to the period of parole ineligibility mandated by NERA. See State v. Reardon, 337 N.J. Super. 324, 329 (App. Div. 2001).

Defendant's claim of ineffective assistance of the counsel who represented him in connection with the petition for post-conviction relief is clearly without merit. R. 2:11-3(e)(2).

Affirmed.