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State v. Lark

Decided: December 14, 1989.


For reversal -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J. Clifford, J., concurring in judgment. Handler, J., joins in this opinion.


[117 NJ Page 332] In State v. Howard, 110 N.J. 113 (1988), we held that before accepting a guilty plea pursuant to a plea agreement, a trial court must inform a defendant of the parole consequences of a sentence to the Adult Diagnostic and Treatment Center (ADTC or Avenel). In this case, defendant pleaded guilty in December 1984 to two counts of first-degree aggravated sexual assault. He was sentenced on one count to ten years imprisonment with two years of parole ineligibility, and on the second count to a consecutive ten-year term at Avenel. Defendant did not appeal. In 1986 he sought post-conviction relief, which the court denied. On appeal from the denial of post-conviction relief, defendant for the first time contended that our decision in Howard should be applied retroactively to his plea proceeding, affording him the opportunity to withdraw his guilty plea. The Appellate Division agreed, concluding that our decision in Howard "does not represent a departure from existing law and is therefore not limited to prospective application." State v. Lark, 229 N.J. Super. 586, 591

(1989). We granted the State's petition for certification, 117 N.J. 51 (1989), and now reverse.


Defendant's plea and sentence resulted from charges against him in three separate indictments. One indictment charged defendant with burglary, attempted aggravated sexual assault, and aggravated criminal sexual contact; a second indictment charged defendant with aggravated sexual assault while armed, aggravated sexual assault during the course of a burglary, and several counts relating to defendant's possession and use of a knife in connection with the sexual assaults; a third indictment charged defendant with burglary and aggravated sexual assault.

After plea negotiations, defendant agreed to plead guilty to two counts of first-degree aggravated sexual assault. The remaining counts of the three indictments were to be dismissed. The State agreed to recommend concurrent sentences of an unspecified duration and a period of parole ineligibility not exceeding four years if defendant was sentenced to state prison rather than Avenel. The trial court accepted defendant's guilty plea. Defendant's Avenel evaluation, see N.J.S.A. 2C:47-1, concluded that his conduct was "characterized by a pattern of repetitive, compulsive behavior," N.J.S.A. 2C:47-3a, rendering defendant eligible for an Avenel sentence.

Prior to sentencing, the trial court apparently informed counsel that the original plea bargain was unacceptable, and that a sentence imposing a ten-year term in state prison with two years of parole ineligibility, and a consecutive ten-year term at Avenel would be acceptable. The court imposed that sentence in April 1985, after both defendant and his counsel confirmed defendant's willingness to modify the plea agreement to reflect the revised sentence. Defendant appealed neither his convictions nor his sentence.

In March 1986, defendant moved for post-conviction relief, asserting as grounds the ineffective assistance of counsel and the imposition of a sentence not in accordance with his plea agreement. On appeal from the denial of post-conviction relief, defendant asserted for the first time that the trial court's failure to have advised him of the parole implications of an Avenel sentence entitled him to revoke his guilty plea. The Appellate Division concluded that our decision in Howard was not a departure from existing law and therefore was applicable to defendant's sentencing proceeding. 229 N.J. Super. 586. The court remanded the matter to the trial court to consider whether the failure to have advised defendant of the parole consequences of an Avenel sentence prejudiced him. It observed that on remand "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." Id. at 592 (citation omitted). The Appellate Division held that our decision in Howard would be applicable "at least since the 1969 revision of the Rules of Court when R.R. 3:9-2 first required that defendants understand the consequences of their guilty plea," ibid., and also concluded that the Howard issue could be raised initially during post-conviction-relief proceedings. Id. at 593.


The first question we consider is whether our holding in State v. Howard, supra, 110 N.J. 113, implicates our inherent power to limit the retroactive effect of our decisions, a power well-established and clearly recognized in past decisions of this Court. See, e.g., Coons v. American Honda Motor Co., Inc., 96 N.J. 419 (1984); State v. Gervasio, 94 N.J. 23 (1983); State v. Hunt, 91 N.J. 338 (1982); State v. Burstein, 85 N.J. 394 (1981); State v. Carpentieri, 82 N.J. 546 (1980); State v. Czachor, 82 N.J. 392 (1980); State v. Howery, 80 N.J. 563 (1979); State v. Sands, 76 N.J. 127 (1978); State v. Nash, 64 N.J. 464 (1974); Darrow v. Hanover Township, 58 N.J. 410

(1971); State v. Johnson, 43 N.J. 572 (1965), aff'd, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). To the extent that retroactivity issues arise in the context of criminal-procedure decisions implicating rights guaranteed under the federal constitution, United States Supreme Court precedents control the scope of retroactivity. See State v. Stever, 107 N.J. 543, 550-52 (1987) (acknowledging that under Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), new constitutional rules of criminal procedure apply retroactively to cases pending on direct review, whether or not new rule constitutes "clear break" with the past). We acknowledge that our holding in Howard collaterally implicates certain federal constitutional rights waived by a guilty plea. The essence of our decision, however, concerns application of the requirement in Rule 3:9-2 that a guilty plea be made "with an understanding of the nature of the charge and the consequences of the plea." We concluded in Howard that for a sex offender subject to an Avenel sentence, Rule 3:9-2 requires the court to determine whether the defendant understands the unique effect an Avenel sentence may have on his parole eligibility. Howard, supra, 110 N.J. at 124-25. Thus, if the retroactive application of Howard is to be limited, state rather than federal standards determine the extent of the limitation.

The threshold issue is generally stated to be whether "a new rule of law has actually been announced." State v. Burstein, supra, 85 N.J. at 403. The Appellate Division in this case focused its attention on our decision in State v. Kovack, 91 N.J. 476 (1982), in which we held that under Rule 3:9-2, the trial court must inform a defendant pleading guilty of any period of parole ineligibility that the court may include in its sentence. Id. at 483-84. We concluded in Kovack that that requirement was not a new rule of law but was rather an application of long-standing principles to the parole-ineligibility terms first authorized when the Code of Criminal Justice took effect in September 1979. Id. at 486-87. The Appellate Division reasoned that in Howard, as in Kovack, our Court relied on the principle that defendants must understand the consequences of a guilty plea. Thus, the Appellate Division concluded that

Howard did not depart from existing law and was therefore fully retroactive. 229 N.J. Super. at 591.

It is evident that the desirability of limiting the retroactive effect of a particular decision cannot be determined simply by classifying the decision as "new" or "old" law. Justice Proctor, writing for this Court in State v. Johnson, supra, noted our reluctance to decide retroactivity questions on the basis of the common-law principle that law is perpetual and immutable:

Perhaps, years ago, there was a philosophical compulsion to apply a new ruling retrospectively. The so-called Blackstonian conception of the nature of law and judicial decision-making was that law was perpetual and immutable. Judges were thought to be the discoverers rather than the creators of the law. Thus, a given decision was merely an evidence of the law; the most recent decision being ...

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