State v. LarkState v. Lark
Pursuant to an amended plea agreement, defendant was convicted in 1985 оf two first-degree aggravated sexual assaults committed during the commission of separate burglaries,
Two years later, defendant filed a petition for post-conviction relief.
In this appeal from that denial, defendant has abandoned the arguments he raised in thе trial court and now makes the following arguments:
I. THE TRIAL COURT‘S CONDUCT IN AMENDING THE PLEA AGREEMENT AT THE TIME OF SENTENCING AND ITS FAILURE TO EXPLAIN TO THE DEFENDANT HE HAD THE RIGHT TO WITHDRAW HIS
PLEA, VIOLATED BOTH RULE 3:9-2 andRULE 3:9-3(a) AND RENDERED DEFENDANT‘S PLEA INVOLUNTARY.II. THE DEFENDANT‘S SENTENCE VIOLATED THE ORIGINAL PLEA AGREEMENT BY EXPOSING HIM TO A POSSIBLE PERIOD OF CONFINEMENT LONGER THAN THAT CONTEMPLATED UNDER ITS TERMS.
III. THE COURT‘S FAILURE TO ADVISE DEFENDANT OF THE PAROLE IMPLICATIONS OF AN AVENEL SENTENCE REQUIRES THAT DEFENDANT‘S CASE BE REMANDED. (Not Raised Below.)
IV. IMPOSITION OF A TOTAL VIOLENT CRIMES COMPENSATION BOARD PENALTY OF $2,000.00 WAS AN INTEGRAL AND MATERIAL PART OF DEFENDANT‘S SENTENCE AND EXCEEDED DEFENDANT‘S REASONABLE EXPECTATIONS. (Not Raised Below.)
V. THE TRIAL COURT FAILED TO PROPERLY WEIGH AGGRAVATING AND MITIGATING FACTORS AND ITS IMPOSITION OF CONSECUTIVE SENTENCES WITH A MANDATORY MINIMUM WAS INCONSISTENT WITH THE IMPOSITION OF MINIMUM TERMS.
Although defendant designates only points III and IV as not having been raised below, as we read the record he raisеd none of his present arguments in the trial court.
An appellate court will not consider an issue, including a constitutional issue, that the parties neither raised nor argued below “unless it goes to the quеstion of jurisdiction or presents a matter of real public importance.” Deerfield Estates, Inc. v. Tp. of East Brunswick, 60 N.J. 115, 120 (1972). We will consider only point III because it requires us to determine matters of public importance: whether the holding in State v. Howard, 110 N.J. 113 (1988), is to be applied retroactively and if so, whether its application may be raised in a petition for post-conviction relief. See State v. Kovack, 91 N.J. 476, 486 (1982).
The original plea agreement provided for altеrnative sentences depending upon whether Avenel determined that defendant‘s conduct was repetitive and compulsive. In the event of such a determination, the aggregate custodiаl sentence could not exceed 20 years at Avenel. In the absence of such a determination, the aggregate prison sentence could not exceed 20 years with a parolе ineligibility period of not more than four years. After reading the presentence report the trial judge
Defendant now contends that the trial court erred in failing to аdvise him that he would not be eligible for parole from Avenel until “after recommendation by a special classification review board” that he “is capable of making an acceptable social adjustment in the community.”
The Howard Court decided the issue as follows:
In the future, trial courts should satisfy themselves that the defendant understands the possibility of the imposition of an Avenel sentence and the effect that such a sentence will have on the defendant‘s parole eligibility. In addition to stating the minimum and maximum terms of the offense, the court should advise the defendant of the standard for parole eligibility with an ADTC sentence. [Howard, 110 N.J. at 125.]
It is clear from this record that the trial judge did not “advise the defendant of the standard for parole eligibility with an ADTC sentence.”
The first question we must decide is whether Howard is to be applied retroactively. A similar question was posed in Kovack, which held that a trial judge must advise a defendant pleading guilty of any likely period of parole ineligibility that the court may include in the sentence. The court there ruled that its holding would not be only prospective because the holding did not depart from existing law, but was simply an expression of
The Howard Court arrived at its holding by following the Kovack analysis. Howard, 110 N.J. at 123-125. However, unlike the Kovack Court, the Howard Court did not discuss the retroactive effect of its holding. We do not consider significant in that regard the phrase “In the future ...” with which it introduced its holding. The language employed directs that in the future judges must inform defendants sentenced to Avenel of the manner by which they become eligible for parole; it does not bar relief to defendants who were prejudiced in the past by not being so informed. In both Kovack and Howard the Court relied upon this State‘s long-standing policy that a defendant must clearly understand the consequences of his plea,
Kovack recognized that before the effective date of the Code a defendant could not have been prejudiced by not being informed of a judge‘s authority to include in the sentence a period of parole ineligibility because before then a sentencing judge did not have that authority. The uniquе parole eligibility features of an Avenel sentence pre-date the Code.
Any person committed to confinement under the terms of this chapter shall be released under parolе supervision when it shall appear to the satisfaction of the State Parole Board, after recommendation by a special classification review board appointed by the commissioner that such person is capable of making an acceptable social adjustment in the community.
That provision replaced a similar provision in N.J.S.A. 2A:164-8:
Any person committed to confinement, as provided for in section 2A:164-6 of this title, may be released under parole supervision when it shall appear to the satisfaction of the state parole board, after recommendation by a special classification review board appointed by the state board of control of institutions and agencies, that such person is capable of making an acceptable social adjustment in the community.
These features have been a part of an Avenel sentence since the adoption of the Sex Offender Act. L. 1950, c. 207 (
However, in оrder to withdraw from a plea agreement on the ground that the judge had failed to give him the required information, a defendant must establish that from an objective standpoint there is a significant possibility that he would not have entered the plea had he been so informed. Howard, 110 N.J. at 124, citing State v. Taylor, 80 N.J. 353, 365 (1979). Establishing that fact will be particularly difficult where the defendant has served a period of confinement without complaint. Thе Howard Court made special note that “defendant‘s immediate protest bespeaks the materiality of the omitted information to his decision to enter the plea agreement.” Howard, 110 N.J. at 125.
The secоnd question we must decide is whether defendant may invoke Howard in a post-conviction relief proceeding. A person may not assert a ground for post-conviction relief unless the court finds
... (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey. [
R. 3:22-4 .]
We are satisfied that (a) applies and therefore need not consider (b) and (c). The Court dеcided Howard on April 19, 1988. Although long standing, this State‘s policy that a defendant understand the consequences of entering a guilty plea did not
There must be a hearing to determine whether dеfendant was prejudiced by the judge‘s failure to advise him of the parole eligibility features of an Avenel sentence. If the court finds that he was prejudiced, defendant may withdraw his plea, subject tо reinstatement of the dismissed charges, and proceed to trial or renegotiate the plea agreement. Howard, 110 N.J. at 125-126.
Reversed and remanded for further proceedings consistent with this opinion.