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State v. Bailey

Decided: July 21, 1988.


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Petrella and Baime. The opinion of the court was delivered by Baime, J.A.D.


This appeal presents a question of first impression. At issue is whether a defendant accused of having committed an offense under the Graves Act (N.J.S.A. 2C:43-6 c) must be advised at the time of his guilty plea that he is subject to a mandatory parole ineligibility term. We hold that such information is crucial to a full understanding of the consequences of a plea and it is thus incumbent upon the trial court to apprise the defendant of the mandatory loss of parole opportunity provided by the Act.

The salient facts are not in dispute. Defendant was charged in a multi-count indictment with kidnapping (N.J.S.A. 2C:13-1 b(1)), attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3),

aggravated assault (N.J.S.A. 2C:12-1 b(1)), first degree robbery (N.J.S.A. 2C:15-1) and possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4 a). The indictment stemmed from a series of incidents which allegedly occurred on June 21, 1983. In the early morning hours, defendant, who was then 15 years old, and Kevin Fothergill commandeered a limousine taxicab driven by Reggie Glover and, at gunpoint, robbed the driver of his cash and various articles of clothing. According to defendant's account, he held the gun to Glover's head as Fothergill drove the limousine from the Bronx, New York to Teaneck, New Jersey. When Glover attempted to run away, defendant fired three shots at the fleeing victim. Glover was ultimately able to escape, however, without injury. Defendant and Fothergill later abandoned Glover's automobile.

On May 15, 1984, defendant, pursuant to an agreement with the State, entered a retraxit plea of guilty to attempted murder, first degree robbery and possession of a firearm for an unlawful purpose.*fn1 Under the agreement, the prosecutor was to recommend that concurrent sentences be imposed and was to seek dismissal of the counts charging aggravated assault and kidnapping. During the course of the proceedings, defendant acknowledged that he fully understood the terms of the plea agreement and expressed satisfaction with the services he had received from his attorney. In the colloquy which followed, defendant was advised by the trial judge of the sentences that could be imposed. Defendant was told that the judge " may impose . . . a period of parole ineligibility which may be up to one-half" of the actual sentence. (Emphasis added). It is undisputed that defendant was never apprised by the court of the applicability of N.J.S.A. 2C:43-6 c, which mandates imposition of a period of parole ineligibility as to certain specified

crimes committed with a firearm. However, defendant signed a form statement in which he acknowledged that "the court may be required to or can impose a term of parole ineligibility. . . ."

At sentencing, on June 22, 1984, the trial judge imposed a custodial term of 15 years, one-half of which must be served without parole eligibility. In pronouncing sentence, the judge did not relate the custodial term to any specific charge. Instead, he merely stated that this was the sentence "on each count." However, the judgment of conviction is inconsistent with this thesis. It provides that a sentence of 15 years was imposed on the attempted murder conviction. As a part of that sentence, the judgment states that defendant is to serve seven and one-half years without parole eligibility. The judgment further reflects that concurrent ten-year sentences were imposed on the convictions for armed robbery and possession of a firearm for an unlawful purpose.

Defendant did not initially file a direct appeal from his convictions. Rather, on March 2, 1987, defendant filed a pro se "motion for reconsideration of sentence and post-conviction relief." In his accompanying memorandum of law, defendant contended that (1) the indictment was defective because it referred to two statutes, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, in charging him with attempted murder, (2) the sentences imposed were excessive and illegal and (3) he was denied the effective assistance of counsel. Although defendant requested assignment of an attorney, the trial judge ignored this application, and, in a brief letter opinion, denied post-conviction relief, finding no deprivation of the Sixth Amendment right to the effective assistance of counsel.

Ten days later, on April 27, 1987, the Public Defender filed a motion for leave to appeal nunc pro tunc from the original judgment of conviction. In the accompanying certification, it

was stated that the assistant deputy public defender who had represented defendant at the plea proceeding had not received a request to file an appeal. However, defendant produced a letter dated October 5, 1986, which was attached to his motion papers, addressed to the Appellate Section of the Public Defender's Office, requesting that an appeal be filed in his behalf. In any event, we granted defendant's motion on May 13, 1987. Defendant thereafter filed a separate appeal from the order ...

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