STATE OF NEW JERSEY v. JAN NAWROCKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0357-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAN NAWROCKI,

Defendant-Appellant.

_____________________________

November 20, 2012

Submitted October 29, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-10-1754.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel and on the brief).

Edward J. De Fazio, Acting Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Special Deputy Attorney General, Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jan Nawrocki appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

By way of background, on March 30, 2004, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree shoplifting, N.J.S.A. 2C:20-11, in exchange for the State's recommendation that he be sentenced as a second-degree offender for the armed robbery. Pertinent here, defendant was advised at time of plea that he would be subject to a mandatory five-year period of parole supervision at the expiration of his sentence. On June 25, 2004, defendant was sentenced in accordance with the plea agreement as a second-degree offender to a five-year prison term, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, the court mistakenly advised at the time that "there would be a three-year period of parole supervision once [defendant] is paroled[,]" which was also reflected on the July 13, 2004 judgment of conviction (JOC). On that same date, the JOC was amended to state the correct parole supervision period of five years, which, as noted, was mandatory.

On May 6, 2010, defendant filed the instant PCR petition, seeking to withdraw his guilty plea and alleging ineffective assistance of counsel, as he was unaware that he faced a mandatory five-year period of parole supervision and had he known, he would not have pled guilty. Finding "exceptional circumstances" to relax the five-year time bar of R. 3:22-12, the PCR judge entertained the merits of defendant's ineffective assistance of counsel claim and ultimately denied relief, finding defendant's contention "clearly contradicted by the plea form and plea transcript." On this score, the PCR judge found:

Question two (2) of that same supplemental [plea] form further states, "Do you understand that because you have pled 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?["] The response circled on the plea form for this question is "Yes."

The PCR judge also referred to the colloquy at time of plea between the court and defendant that reinforced this fact:

THE COURT: . . . [J]ust before we move to schedule a date for the presentence interview and sentencing, I want to make sure, [defendant], that you understand that with respect to the armed robbery count that any sentence I impose would be subject to the 85 percent rule and also which would mean that you would have to have five years of parole supervision after you were paroled on the sentence and that if you violated that parole supervision period that you could go back to State's Prison to complete that five-year parole supervision sentence. You understand that.

DEFENDANT: Yes, ma'am.

THE COURT: Okay.

DEFENDANT: I understand.

[(Emphasis added).]

The PCR judge also found that no prejudice inured to defendant because of the claimed deficiency in counsel's performance:

Yet, after being informed of this consequence, the [defendant] still chose to plea. It was not until the date of sentence, two months later, that the [defendant] was first told, albeit mistakenly, by [the sentencing judge] that he would only be serving a three year period of parole supervision. Therefore, this Court finds that this [defendant] was well aware that he would be required to serve a five year period of parole supervision on the day he pled, making it unlikely that he would not have pled guilty as a result of being required to serve a mandatory five year period of parole supervision. Thus, [defendant] cannot establish a reasonable likelihood of success on the merits, and, therefore, has not set forth a prima facie case of ineffective assistance of counsel and is not entitled to an evidentiary hearing. As such, the [defendant] is not entitled to post-conviction relief.

With respect to the feature of defendant's PCR petition seeking to vacate his guilty plea, the judge found all four of the Slater1 factors weighed heavily against defendant and therefore denied this relief as well:

With respect to the first prong, the [defendant] has not set forth a colorable claim of innocence. In fact, the [defendant] at no point claims he is innocent of the charge.

. . . .

With respect to the second prong

. . . . the [defendant] has not set forth a prima facie case of ineffective assistance of counsel and, therefore, finds his reasons for wanting to withdraw his guilty plea incredulous and the strength of his argument insufficient.

. . . .

With respect to the third prong, the favorable plea agreement in the case at bar clearly weighs against the [defendant]. This Court would be hard pressed to consider that [defendant's] indictment on first degree armed robbery that was treated as a second degree for sentencing purposes was not favorable.

. . . .

With respect to the final prong, there would be extreme prejudice to the State in this matter. The events that led to this Indictment occurred over seven years ago. The State's ability to present this case is clearly at risk.

On appeal, defendant raises the following issues:

I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED FROM AN EX POST FACTO CHANGE IN PAROLE SUPERVISION WAS VIOLATED.

II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

IV. DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND INTELLIGENT, AND SHOULD BE VACATED.

We deem these issues to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only the following comments.

It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 57-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 209-10 (1985); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58-61 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test, substantially for the reasons stated by Judge Lourdes I. Santiago in her comprehensive written opinion of February 28, 2011.

With respect to defendant's contention that he was subjected to an unconstitutional ex post facto increase in his parole supervision, suffice it to say, the claim was never raised below and therefore is not properly presented here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Cryan, 320 N.J. Super. 325, 332 (App. Div. 1999). In any event, the argument fails substantively. Defendant's sentencing exposure did not change much less increase from the time he pled guilty, when he was clearly aware he was subject to the mandatory five-year period of parole supervision, a fact memorialized in his JOC, amended the very same day of its entry, to reflect this particular feature of his sentence.

1 State v. Slater, 198 N.J. 145, 157-58 (2009).