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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2744-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY M. PERRONE,
Defendant-Appellant.
______________________________
Submitted August 1, 2018 – Decided August 6, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment Nos.
13-11-3189, 14-01-0127 and Accusation No. 14-
06-1838.
Joseph E. Krakora, Public Defender, attorney
for appellant (Joseph Anthony Manzo,
Designated Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Anthony M. Perrone appeals from the denial of his
petition for post-conviction relief (PCR), asserting he was
entitled to an evidentiary hearing on his claim that he received
ineffective assistance of counsel. After reviewing his
contentions in light of the record and applicable principles of
law, we reverse and remand for an evidentiary hearing.
In June 2014, defendant entered into a negotiated plea
agreement to resolve three separate criminal cases. He pled guilty
to third-degree charges of attempted burglary, N.J.S.A. 2C:5-
1/2C:18-2(a)(1), from one indictment, and possession of marijuana
with intent to distribute, N.J.S.A. 2C:35-5(a)(1), from a second
indictment. Defendant also pled guilty to a third-degree
accusation charge of endangering the welfare of a child, N.J.S.A.
2C:24-4(a).
Defendant was sentenced to four-year concurrent sentences on
each conviction. He was also ordered to comply with Megan's Law
and was subject to Parole Supervision for Life (PSL) under N.J.S.A.
2C:43-6.4. Defendant did not take a direct appeal.
In February 2016, defendant filed a PCR petition seeking to
withdraw his plea and alleging his counsel was constitutionally
ineffective. In addition to other arguments, he asserted counsel
failed to fully explain the consequences of his plea to endangering
the welfare of a child, contending he was not advised of the
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requirements of PSL. In an oral decision issued January 20, 2017,
the trial judge denied the PCR petition, finding defendant had
reviewed and acknowledged the reporting requirements on the plea
forms. The court also denied the motion to withdraw the guilty
plea.
Defendant presents the following points on appeal:
POINT I: BECAUSE DEFENSE COUNSEL WAS
INEFFECTIVE BY NOT EXPLAINING TO THE DEFENDANT
THE PENAL AND COLLATERAL CONSEQUENCES OF HIS
PLEA TO ENDANGERING THE WELFARE OF A MINOR,
THE COURT ERRED IN DENYING POST-CONVICTION
RELIEF WITHOUT CONDUCTING AN EVIDENTIARY
HEARING.
A) Ineffectiveness of counsel with
respect to the Parole Supervision
for Life Statute.
B) Ineffectiveness of counsel with
respect to the Sexually Violent
Predator Act.
POINT II: COUNSEL WAS INEFFECTIVE BY NOT
SEEKING TO WITHDRAW THE PLEA, WHEN EVIDENCE
SURFACED THAT THE WITNESS LIED ABOUT THE
WITNESS TAMPERING INCIDENT.
POINT III: BECAUSE THE DEFENDANT MADE A PRIMA
FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL, THE COURT MISAPPLIED ITS
DISCRETION IN DENYING POST-CONVICTION RELIEF
WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
In a pro se supplemental brief, defendant adds the following:
POINT I: THE TRIAL COURT ERRED IN DENYING
POST-CONVICTION RELIEF WHEN DEFENDANT
PETITIONED THE COURT TO WITHDRAW HIS PLEA AND
REQUEST TO PROCEED TO TRIAL BECAUSE A[]
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PROPOSITION DOES NOT SATISFY THE ELEMENTS OF
THE STATUTE.
B. Trial Counsel Was Ineffective
For Not Filing A Motion To Withdraw
Plea Based On Ill-Advice And An
Error In The Pre-Sentence Report.
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 (1984) and adopted by
our Supreme Court in State v. Fritz, l05 N.J. 42 (1987). 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, 466 U.S. at 687, 694.
In certifications presented by defendant and his wife to
support his PCR petition, defendant maintained he advised trial
counsel he was innocent of the child endangerment charges and
would not accept any plea that would place restrictions on his
ability to travel, as his self-employment required travel to
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Pennsylvania, Delaware, and within New Jersey. He also stated he
resided across the street from two elementary schools and he would
not have entered into a plea agreement that placed restrictions
on where he could reside.
Defendant further contends he was told by trial counsel that
PSL only entailed reporting to local authorities once a year and
registering under Megan's Law. As a result, he accepted the
endangering the welfare of a child plea. When reviewing the
questions on the plea forms pertaining to PSL, defendant certified
that he marked the forms "N/A." A review of the form entitled
"Parole Supervision for Life" reflects "N/A" is circled, but
crossed out, and "yes" is also circled.
During the plea hearing, the prosecutor advised the court
that defendant had completed the required forms including the
"four-page supplemental, which is additional questions for certain
sexual offenses. That contains the registration requirements, the
Megan's Law parole supervision for life." The court asked
defendant, "do you remember going over these extensive forms that
set forth all your obligations relative to an Avenel evaluation,
parole supervision for life, et cetera?" Defendant responded
"[y]es," adding "I understand what was on the forms and I
understand what the prosecutor told my attorney."
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The following colloquy took place when the judge asked
defendant if he had any questions of his attorney.
[Defendant:] No. I would just say, Your
Honor, that one of the questions on the form
says something about lifetime parole. And I
didn't understand it at first and my attorney
went to the prosecutor and the prosecutor
explained that's a part of parole. The
supervision would be in terms of the
reporting, the Megan's Law reporting.
. . . .
[Defendant:] Not parole for life as someone
coming out of the penitentiary.
. . . .
[Defendant:] That was my only concern.
[Court:] It's part of the Megan's Law
requirements. Do you understand that now?
[Defendant:] Yes, sir.
Defendant and his wife stated in their affidavits that trial
counsel told defendant prior to the plea that PSL had no travel
or residential restrictions, it merely permitted the State Parole
Board to supervise defendant's reporting to local authorities.
Defendant states this is consistent with the annual reporting
requirements in Pennsylvania as he understood them based on his
previous conviction for a sexual offense in that state.
In dismissing defendant's PCR petition, the judge noted
defendant had been apprised of the reporting requirements.
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However, defendant's contention, supported by the record, is he
did not have a concern with "reporting requirements," but if he
had known about the travel and residential restrictions, he would
have refused to plead guilty. And, although defendant stated at
the PCR hearing he neither signed the PSL form1 nor crossed off
"N/A" and circled "yes" to any of the PSL questions, this issue
was not addressed by the PCR judge.
In State v. Maldon, 422 N.J. Super. 475, 478 (App. Div. 2011),
we considered a similar issue. There, "N/A" had been circled next
to a question asking if defendant understood he could be
involuntarily civilly committed if, after an evaluation, he was
found to be a sexually violent predator. Ibid. We remanded for
an evidentiary hearing, noting "if a defendant is affirmatively
misinformed about a collateral consequence that is a central issue
to the plea negotiations, the plea may not be knowing and
voluntary." Id. at 485. It was error for the PCR court to
conclude defendant had not been misinformed about a collateral
consequence of the plea without an evidentiary hearing, "which
would have provided a complete factual record." Id. at 485.
1
The signature on the PSL page appears to differ from defendant's
signature on other pages.
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This case requires the same result. Defendant is entitled
to an evidentiary hearing on his claim that his attorney misadvised
him about the PSL restrictions stemming from his plea. Because
defendant's other claims involve distinct, but factually
overlapping issues pertaining to the plea negotiations, those
claims should also be reinstated and all issues addressed in the
evidentiary hearing. See State v. O'Donnell, 435 N.J. Super. 351,
377 (App. Div. 2014). We offer no opinion on the merits of
defendant's underlying claims.
Reversed and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
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