On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Pressler, O'Brien and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.
Upon leave granted, defendant appeals from an order vacating his guilty pleas to an accusation charging him with aggravated manslaughter (N.J.S.A. 2C:11-4a) and possession of a weapon with a purpose to use it unlawfully against the person of another (N.J.S.A. 2C:39-4) because he appealed from the final judgment of conviction in violation of the plea agreement. We reverse.
On February 9, 1986, defendant was charged in a municipal complaint with murder (N.J.S.A. 2C:11-3). This charge exposed him to imprisonment for a term of 30 years during which he would not be eligible for parole or to a specific term of years between 30 years and life imprisonment of which he would be required to serve 30 years before being eligible for parole. Pursuant to a negotiated plea agreement, defendant waived his right to indictment and trial by jury and entered a plea of guilty to a two-count accusation. The first count charged him with aggravated manslaughter (N.J.S.A. 2C:11-4a), a crime of the first degree, which at the time subjected him to a maximum term of imprisonment of 20 years pursuant to N.J.S.A. 2C:43-6a(1),*fn1 and the second count charged him with possession of an automatic handgun with a purpose to use it unlawfully against the person of another (N.J.S.A. 2C:39-4), a crime of the second degree subjecting him to a maximum term of imprisonment of ten years pursuant to N.J.S.A. 2C:43-6a(2).
Under the terms of the plea agreement, the State agreed to recommend an aggregate sentence of 30 years with a 15-year period of parole ineligibility. Defendant agreed to waive his right to appeal and also to waive any issue as to the merger of the charge in count two into the charge in count one. Before accepting the pleas of guilty, the trial judge satisfied himself that defendant had voluntarily waived his right to indictment and trial by jury, and that there was a factual basis for his pleas which he entered voluntarily pursuant to R. 3:9-2. At the time of his pleas, defendant conceded that his exposure to a term of 30 years without parole if he had been indicted by the grand jury for murder was one of the considerations that led him to enter into the plea agreement with the State. The judge explained to defendant that the potential sentence under the agreement was 30 years with a 15-year period of parole ineligibility which defendant acknowledged he understood.
At sentencing on April 23, 1986, defendant's lawyer argued that a 30-year sentence with a 15-year period of parole ineligibility "is extremely harsh and a very, very hard, hard burden to take" for "a person of this extreme youth and with no prior adult convictions." He asked the judge to consider giving a lesser sentence. The judge observed that had defendant been indicted for murder and convicted after trial, he would have faced a period of 30 years of parole ineligibility, "twice as much time as you agreed with in this negotiated sentence." The judge then recognized guidelines which he was obliged to follow in imposing a particular sentence. He referred to the presumption of incarceration and the Graves Act. The judge briefly reviewed the aggravating and mitigating factors and stated:
The bottom line is that the plea agreement is the proper one, considering the fact that you are facing 30 years without parole, considering the fact that the prosecutor took that into consideration when he offered the plea agreement, and I concur with his decision.
The judge then sentenced defendant on count one for aggravated manslaughter to the maximum term of 20 years with a
ten-year period of parole ineligibility. Noting that defendant waived his right to argue that the second count merged into the first count in the plea agreement, the trial judge sentenced defendant on count two for possession of a weapon for an unlawful purpose to the maximum sentence of ten years with a five-year period of parole ineligibility, to be served consecutively to the sentence imposed on the first count. Thus, defendant was sentenced to an aggregate term of 30 years with a 15-year period of parole ineligibility consistent with the State's recommendation under the plea agreement.
In violation of the plea agreement, defendant filed a notice of appeal on June 11, 1986. Since the sole issue on appeal was the alleged excessiveness of the sentence, the appeal was scheduled for oral argument, without the filing of briefs, on October 1, 1986. However, the transcript, presentence report and the balance of the record on appeal were not filed until May 18, 1987, and the matter was relisted for oral argument on June 9, 1987, almost one year after the notice of appeal had been filed.
During the course of oral argument on June 9, 1987, the presiding judge expressed concern because the sentences had been ordered to be served consecutively. The deputy attorney general argued that State v. Yarbough, 100 N.J. 627 (1985), cert. den. Yarbough v. New Jersey, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), had not been decided at the time of this plea, and thus the trial judge had not made a specific statement of his reasons.*fn2 When the presiding judge observed the potential for disparity in sentences imposed in ...