                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-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

                                        2                                A-2744-16T1
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[]

                                 3                          A-2744-16T1
           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

                                        4                               A-2744-16T1
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."



                                       5                                     A-2744-16T1
     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.


                                        6                                 A-2744-16T1
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.


                                       7                                  A-2744-16T1
     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.




                                  8                           A-2744-16T1
