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State v. Kovack

Decided: December 7, 1982.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
FRANK KOVACK, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



On certification to the Superior Court, Appellate Division.

For modification and affirmance -- Chief Justice Wilentz, and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Clifford, J.

Clifford

The Appellate Division, in an unreported opinion, determined that when a criminal defendant pleads guilty in accordance with a plea agreement, the court taking that plea must "affirmatively inform defendant of the maximum period of parole ineligibility imposable" under the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 65-4 and 98-1 to -4, particularly N.J.S.A. 2C:14-6, N.J.S.A. 2C:43-6 b. and c., and N.J.S.A. 2C:43-7 b. and c. (Code). The court below concluded that defendant's sentence violated the plea agreement because the sentencing court imposed a period of parole ineligibility even though such a provision was not contemplated by the agreement. The Appellate Division therefore remanded the case to the Law Division for further proceedings. In addition, it announced that its ruling would be given prospective effect only.

We granted certification, 91 N.J. 220 (1982), on the State's petition to review the Appellate Division's requirement that a defendant be informed of the possibility of imposition of a period of parole ineligibility, and on defendant's cross-petition to review the determination that that requirement would be given only prospective application. Defendant also seeks specific performance of his plea agreement.

On the State's appeal we affirm. We likewise affirm so much of the judgment below as denies defendant specific performance of his plea agreement. Finally, we endorse the ruling that a defendant must be informed of any period of parole ineligibility that is likely to become part of his sentence, but we do not limit the application of that requirement to prospective effect only. We therefore modify the judgment below to that extent and hold that the aforestated requirement pertains to all pleas entered since the effective date of the Code, September 1, 1979.

I

The facts and so much of the ruling below as bear upon the State's appeal may be taken from the Appellate Division's unreported opinion.

On November 3, 1980 defendant entered a plea of guilty to aggravated sexual assault, involving a thirteen year old female child, in violation of N.J.S.A. 2C:14-2 a. As part of the plea agreement, other counts of aggravated sexual assault and endangering the welfare of a child were dismissed. The State agreed that the custodial sentence would not exceed ten years. On January 26, 1981 another judge sentenced defendant to a custodial term of eight years and imposed a minimum parole ineligibility of four years. On appeal defendant contends that the eight year sentence is excessive and that the four years of parole ineligibility violated the plea agreement. However, defendant does not seek to vacate his plea; rather, he urges us to modify his sentence to conform to the plea agreement.

Preliminarily, we note that the defendant's plea of guilty to aggravated sexual assault triggered the provisions of the Sex Offender Act, N.J.S.A. 2C:47-1 to -7. Defendant was examined at the Adult Diagnostic and Treatment Center, and he was found not to fall within purview of N.J.S.A. 2C:47-3. Therefore, defendant received a correctional sentence in accordance with N.J.S.A. 2C:43-10a rather than a sentence as a sex offender.

R. 3:9-2 outlines the procedure and requirements for taking guilty pleas. As is here pertinent, the rule provides:

The court in its discretion may refuse to accept a plea of * * * guilty, and shall not accept such plea without first addressing the defendant personally and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily * * * and with an understanding of the nature of the charge and the consequences of the plea.

While endeavoring to ensure that defendant was aware of the consequences of his plea, and in particular when he would be eligible for parole, the assistant prosecutor, defense attorney and the plea judge engaged in the following colloquy:

THE COURT: Is there any understanding with respect to a fixed minimum as far as a parole date is concerned?

MRS. MUNKACSI [prosecutor]: No, your Honor, there is no understanding.

MR. DOLAN: [defense attorney]: Except that I did review with Mr. Kovack the schedule on early eligibility and latest eligibility according to the chart, which he understands.

MR. DOLAN: Mr. Kovack, I have reviewed the plea bargaining with you at length and I did so on this past Friday morning --

A. Yes.

Q. The date escapes me, but it's now November 3rd and it was Friday before that, and at that time, we reviewed not only ...


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