On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-9-1721-A.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Fall.
Defendant entered into a negotiated plea to an accusation charging first degree armed robbery, N.J.S.A. 2C:15-1, and two other offenses, in exchange for the dismissal of other charges, downgrade of the armed robbery for purposes of sentencing (with a maximum seven-year custodial term), and application of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. He subsequently pled guilty to obstruction of justice, N.J.S.A. 2C:29-1, on a separate occasion in exchange for a recommended concurrent sentence. Defendant was sentenced to six years in the custody of the Department of Corrections, with 85% to be served before parole eligibility on the armed robbery,*fn1 and to concurrent sentences.*fn2 On this appeal, defendant argues that the guilty plea to obstructing justice lacked a factual basis; the trial judge did not follow the sentencing guidelines in sentencing defendant; the finding of aggravating factors was not based on competent credible evidence; and "defendant was deprived of his constitutional right to counsel both at the plea and sentencing stages of his criminal proceeding[, and, therefore,] his sentence must be vacated and remanded to the trial court." With respect to the last point, defendant specifically contends that his trial counsel "should never have conceded that NERA applied."
The prosecutor detailed the original plea agreement as follows:
The defendant –- it is the State's understanding the defendant will retract his previously entered plea of not guilty and plead guilty to counts one, two and three of the accusation. At the time of sentencing the State will recommend that the defendant be sentenced as a second degree offender and will further recommend the defendant be sentenced to seven years in New Jersey State Prison. No –- the No Early Release Act does apply to count one of this accusation. Therefore, the defendant will be required to serve eighty-five percent of the sentence that he receives.
The other conditions of the plea are that the defendant give a truthful factual basis under oath and that he testify against the juvenile co-defendant, [T.H.], in juvenile court.
At the time of sentencing the State will move to dismiss the remaining counts and complaints involved in these two incidents.
The defendant also agrees to make restitution in the amount of eight hundred dollars to the victim Andrew Thiele for property that was taken from him during the course of the robbery.
At the plea proceedings, defendant acknowledged that he signed the plea form which included the "Supplemental Plea Form for No Early Release Act Cases." The plea colloquy also included the following:
THE COURT: Of course the plea agreement says seven years flat. I don't see anything with a stip as they call it. So there's a seven year period but there's no mandatory period of parole ineligibility. Do you understand that, sir?
THE COURT: Do you also understand the charges to which you are pleading guilty carry a mandatory period of parole ineligibility but not a mandatory extended term? That is, since it is under the eighty- five percent rule –- I'll get to that in a moment –- you will have to serve eighty-five ...