STATE OF NEW JERSEY v. SAKEEN LATTIMORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAKEEN LATTIMORE,

Defendant-Appellant.

_____________________________________

October 31, 2016

Submitted July 19, 2016 Decided

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No. 08-01-0001.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm.

Defendant pled guilty in 2008 to one count of third-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a). He admitted inappropriately touching a ten-year-old female. The plea agreement required defendant's evaluation at Avenel Adult Diagnostic Treatment Center to determine if he was a "repetitive and compulsive" sex offender. Because the evaluation at Avenel concluded defendant was not a repetitive and compulsive offender, defendant was sentenced in July 2008 to parole supervision for life and was also required to register as a Megan's Law offender. Defendant did not file a direct appeal from his conviction or sentence.

Defendant filed a PCR petition on October 4, 2013 claiming his plea attorney misadvised him about the parole supervision for life requirement by telling him it meant supervision for fifteen years and not for life. At the evidentiary hearing on the PCR petition, defendant said he was not "paying attention" when the terms of the sentence were explained to him, he "guessed" what to circle on the plea form, and his plea counsel did not explain the parole supervision for life requirements to him. Defendant wanted to maintain his plea deal but eliminate the parole supervision for life requirement.

Defendant's plea counsel testified that although he did not specifically recall defendant, he never advised clients that parole supervision for life meant fifteen years. Rather, he would advise that fifteen years was the minimum.

The PCR judge found defendant lacked credibility because his testimony was inconsistent. Defendant was "aware of what was going on [at the plea] and understood it," because he appropriately answered the questions directed to him. He found the plea forms included parole supervision for life and were "crystal clear". The court noted there were repeated references to parole supervision for life during the plea hearing. Also, defendant's PCR counsel, whose testimony was found to be credible, did not support defendant's contentions.

Defendant presents one issue for our consideration on appeal.

Point One - THE DECISION OF THE PCR COURT MUST BE REVERSED BECAUSE DEFENDANT WAS MISADVISED BY PLEA COUNSEL REGARDING THE DURATION OF HIS PAROLE SUPERVISION FOR LIFE.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 687 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42, 52 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698. In the plea bargain context, "a defendant must prove that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original) (internal quotation marks and citations omitted), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

We are entirely satisfied from our review of the record that the PCR court did not err in rejecting defendant's PCR petition. Defendant failed to show any evidence he was misadvised about the parole supervision for life requirement. His plea counsel denied advising defendant about a fifteen-year limit. The plea forms that defendant signed provided that "parole supervision for life" meant "that upon release from incarceration or immediately upon imposition of a suspended sentence you will be supervised by the Division of Parole for at least 15 years and will be subject to provisions and conditions of parole." The judge advised defendant at sentencing that parole supervision for life "essentially means you're on parole for life." The Judgment of Conviction included "[p]arole [s]upervision for [l]ife." The PCR judge found that defendant heard and understood the terms of the plea and agreed with them. Accordingly, the PCR court correctly denied defendant's PCR petition.

Affirmed.