                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-5218-16T1

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

DANIEL J. RIOS, a/k/a DANIEL HERNANDEZ,
GABRIEL RUIZ, DANIEL H. RIOS, GABRIEL
RIOS, SEAN DAVIS, GABRIEL RUIS, and
DANIEL JESUS RIOS,

     Defendant-Appellant.
__________________________________________

                Submitted June 19, 2018 - Decided September 18, 2018

                Before Judges Nugent and Accurso.

                On appeal from Superior Court of New Jersey, Law
                Division, Union County, Indictment No. 13-09-0804.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Alison Perrone, Designated Counsel, on the
                brief).

                Michael A. Monahan, Acting Union County
                Prosecutor, attorney for respondent (Michelle J. Ghali,
                Special Deputy Attorney General/Acting Assistant
                Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Daniel J. Rios appeals from the dismissal of his petition for

post-conviction relief (PCR), contending he established a prima facie case of

ineffective assistance of counsel requiring an evidentiary hearing. Because the

trial judge correctly determined the evidence insufficient to sustain defendant's

burden, we affirm.

      Defendant was indicted on charges of first-degree murder, N.J.S.A.

2C:11-3(a)(1)(2); second-degree robbery, N.J.S.A. 2C:15-1; second-degree

burglary, N.J.S.A. 2C:18-2; and first-degree felony murder, N.J.S.A. 2C:11-

3(a)(3) arising out of his asphyxiation of a ninety-two-year-old woman in the

course of robbing her home. Defendant's fingerprints were found in the

victim's kitchen and he confessed to the crime. He was not yet forty years old

and had nine prior indictable convictions. His sentencing exposure was a life

term without parole.

      In exchange for a plea to felony murder, the State offered defendant a

sentence of thirty-five years with an eighty-five percent period of parole

ineligibility. Defendant ultimately executed a supplemental plea form for a

non-negotiated plea based on the judge's representation that he would sentence

defendant to a thirty-year prison term with thirty years of parole ineligibility.


                                                                             A-5218-16T1
                                         2
      Although defendant had already signed the supplemental plea form for

No Early Release Act (NERA) cases, see N.J.S.A. 2C:43-7.2, acknowledging

his plea to felony murder would require the court to impose a five -year period

of parole supervision to begin as soon as his incarceration ended, the judge

specifically addressed the issue with defendant during the plea colloquy. The

judge explained to defendant that he would be

            subject to the No Early Release Act even though it’s a
            30 with a 30 and that means under the No Early
            Release Act you'd be subject to five years of parole
            supervision after you're released, and if you violate
            any of the provisions, that means that you could be
            returned to state prison for up to that five-year period
            even though you may have maxed out on the original
            30 with a 30. Do you understand that?

When defendant acknowledged he understood that, the judge noted that

question three on the NERA form was not circled. He accordingly asked

defendant if he understood

            that if you violate the conditions of your parole
            supervision that your parole may be revoked and that
            you may be subject to return to state prison to serve all
            or any of the remaining period of parole supervision,
            even if you completed serving the term of
            imprisonment previously imposed? That's what we
            just went over.




                                                                          A-5218-16T1
                                        3
When defendant again acknowledged he understood, his counsel followed up,

asking "And you are aware of that, right, Mr. Rios?" To which defendant

replied, "Yes."

      Defendant filed a timely petition for post-conviction relief claiming his

plea counsel failed to explain he would be subject to five years of parole

supervision after his release. He claimed she told him he would get "30 with

30" and that is what he expected. He further claimed he "felt a tremendous

amount of anxiety as the judge was talking" and "could not follow the court's

remarks" or "bring [him]self to ask questions [he] had about the plea."

Defendant claimed he would not have accepted the plea had he known he

would be subject to five years of parole supervision "and the possibility of

returning to prison in the face of a parole violation."

      After hearing the argument of counsel, the judge issued a written opinion

denying the petition on the basis defendant had failed to establish a prima facie

claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). The

judge found defendant's claim that he was unaware of the five-year parole

supervision term at the time he entered his plea was belied by the transcript of

that proceeding. Specifically, the judge noted the court had taken pains to




                                                                             A-5218-16T1
                                         4
explain to defendant that he would be subject to the five-year parole

supervision term "even though it's a 30 with a 30."

       Applying the Strickland 1 test, the judge found defendant could not

establish either that his attorney's representation fell below an objective

standard of reasonableness or that but for counsel's errors, defendant would not

have entered a guilty plea and instead would have insisted on going to trial.

See State v. Gaitan, 209 N.J. 339, 351 (2012). Again relying on the plea

transcript, the judge found the parole supervision term was thoroughly

discussed, defendant asserted several times he was aware of the consequences

of his plea, including the parole supervision term, that he had discussed it with

his counsel and was satisfied with her performance. The judge found no merit

to defendant's claims.

       On appeal, defendant presents only one argument:

             DEFENDANT WAS ENTITLED TO AN
             EVIDENTIARY HEARING ON HIS CLAIM OF
             INEFFECTIVE ASSISTANCE OF PLEA COUNSEL
             FOR FAILING TO CORRECTLY ADVISE HIM
             THAT HE WOULD BE SUBJECT TO A FIVE-YEAR
             PERIOD OF PAROLE SUPERVISION UPON HIS
             RELEASE FROM PRISON.




1
    Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
                                                                              A-5218-16T1
                                         5
We reject his argument and affirm the denial of defendant's petition

substantially for the reasons set forth in Judge McDaniel's May 23, 2017

written opinion applying Strickland.

      Affirmed.




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