Before Judges Stern and Steinberg.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 1999 *fn1
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
This appeal requires us to consider whether a pellet gun is a "deadly weapon" for purposes of N.J.S.A. 2C:43-7.2, thereby requiring the imposition of a parole ineligibility term of 85% of the sentence imposed. We hold that the parole ineligibility term was properly imposed and affirm defendant's sentence for committing an armed robbery with the gun.
Defendant pled guilty to first degree armed robbery, N.J.S.A. 2C:15-1a(2) (count one), possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count three), and theft from the person, N.J.S.A. 2C:20-3a (count five), in exchange for a recommendation of concurrent sentences with a maximum term of twelve years in custody, 85% of which was to be served without parole eligibility, and the payment of restitution. He received a twelve-year sentence on the armed robbery conviction and concurrent sentences for the other two convictions, each concurrent with another sentence then being served. While the judgment does not so provide, the "statement of reasons" for the sentence reflects a ten-year, two-month parole ineligibility term. Mandatory fees and penalties were also imposed.
In entering his guilty plea, defendant admitted committing an armed robbery with a pellet gun. *fn2 Count five dealt with the theft of more than $500, and at the oral argument before us on the Oral Argument Sentencing Calendar, the State conceded that count five must merge into count one because the theft was the subject of the robbery. We permitted supplementary briefing on the question of whether the pellet gun constituted a "deadly weapon" for purposes of N.J.S.A. 2C:43-7.2, hereinafter called the No Early Release Act ("NERA").
At the time of the plea, defense counsel stated that he had concluded "that the minimum mandatory parole ineligibility for a 12 [year sentence as recommended by the prosecutor] under this rule would be approximately ten years and two months." Defense counsel appears to have conceded that this case would fall under NERA. After being asked about his potential exposure for the three offenses, defendant acknowledged that he "freely and voluntarily" answered the questions on "the original plea form" and supplemental plea form with respect to the No Early Release Act. In addition, he gave a factual basis for the offenses, acknowledging that he robbed a liquor store while in "possess[ion] of a CO200.177 caliber pellet gun" for which he had no "license," although he understood that a license was necessary to possess such a gun. Moreover, he said that he "demanded the money or asked [the person behind the cash register] for the money and showed him the gun."
While defendant acknowledged the maximum sentence for each offense for which he was charged, and acknowledged that he was exposed to a maximum sentence of thirty years and $115,000 in fines but for the prosecutor's recommendation, he was never specifically asked on the record if he understood his maximum sentence under the negotiated plea or whether he knew he had to serve 85% of his sentence before being eligible for parole. Rather, he acknowledged signing the plea form which stated "State recommends a 12 year term of incarceration with 85% to be served before parole eligibility ...." He also acknowledged executing the "Supplemental Plea Form for No Early Release Act Cases," and by doing so indicated that he was pleading guilty to a "first or second degree violent crime," and specifically to robbery in the first degree. Furthermore, he acknowledged that he would "be required to serve 85% of the sentences imposed for that offense(s) before [he would] be eligible for parole on that offense(s)," and that by pleading guilty "the minimum mandatory period of parole ineligibility is 10 years and 2 months . . . and the maximum period of parole ineligibility can be 12 years and 0 months," *fn3 which "cannot be reduced by good time, work or minimum custody credits." He also indicated that he faced a minimum "5 year term of parole supervision."
Defendant does not challenge the lack of development on the record of his sentence exposure under NERA. We nevertheless believe that, notwithstanding the plea form defendant executed, the trial judge should have reviewed the subject with defendant personally before accepting his guilty plea. See State v. Kovack, 91 N.J. 476, 483-84 (1982). See also R. 3:9-2. However, because of the specificity of the questions on the supplemental plea form and defendant's acknowledgment of his knowing and voluntary execution thereof, we do not believe he can attack the parole ineligibility term on that basis in this case. See State v. Rumblin, __ N.J. Super. __, __ (App. Div. 1999) (slip op. at 3).
If a defendant acknowledges at the time of his guilty plea that NERA applies, a question exists as to whether he can subsequently challenge its application on appeal. Clearly, cases like State v. Warren, 115 N.J. 433 (1989), and State v. Spinks, 66 N.J. 568 (1975), which deal with the defendant's right to appeal from a negotiated sentence, are distinguishable from the present case dealing with the validity of a required parole ineligibility term. We nevertheless conclude that the challenge before us is cognizable on appeal because we are dealing essentially with an issue of sentence legality which can be raised even on collateral attack. See R. 3:22-2(c). See also State v. Peters, 129 N.J. 210, 216-17 (1992); State v. Vasquez, 129 N.J. 189, 194-95 (1992). *fn4