On appeal from Superior Court of New Jersey, Law Division, Burlington County, 00-01-0002- I.
Before Judges King, Lisa and Fuentes
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
A guilty plea to an offense subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, may be withdrawn if the defendant was not first informed of the mandatory 85% parole disqualifier required for NERA offenses. State v. Burford, 163 N.J. 16, 21-22 (2000). In this appeal, we consider whether the failure of a defendant to also be informed, before pleading guilty to a NERA offense, of the special parole supervision provision mandated by NERA can constitute a basis for withdrawal of the plea. We hold it can.
After pleading guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, defendant was sentenced to the twenty-five-year term of imprisonment recommended in her plea agreement, subject to an 85% NERA parole disqualifier. Defendant appealed, and because the only issues raised pertained to her sentence, the matter was placed on our excessive sentencing calendar. R. 2:9-11. After oral argument, the excessive sentencing panel affirmed the sentence. *fn1 The Supreme Court then granted defendant's petition for certification, and summarily remanded the matter to us for full briefing and argument of the appeal on the merits. State v. Freudenberger, 174 N.J. 37 (2002). Both parties have submitted briefs and we have heard oral argument. Defendant contends: POINT I THE MATTER MUST BE REMANDED BECAUSE DEFENDANT WAS INADEQUATELY ADVISED ABOUT THE PENAL CONSEQUENCES OF THE PLEA, AS SHE WAS NEVER INFORMED OF THE UNIQUE TERMS OF PAROLE UNDER THE NO EARLY RELEASE ACT.
POINT II THE COURT ERRED IN IMPOSING A 25-YEAR SENTENCE, BECAUSE IT WEIGHED INAPPLICABLE AGGRAVATING FACTORS AND FAILED TO WEIGH APPLICABLE MITIGATING FACTORS.
On Point I, we remand with directions that defendant move before the trial court to vacate her plea. Because of this disposition, we do not address Point II.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2), first-degree felony murder, N.J.S.A. 2C:11- 3a(3), second-degree conspiracy to commit robbery and theft, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1a and N.J.S.A. 2C:20-3a, two counts of first-degree robbery, N.J.S.A. 2C:15-1a(1), and third- degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3). Two co-defendants, Delton K. Anderson and Kathleen Dunleavy, were charged with the same offenses.
Defendant and the Burlington County Prosecutor entered into a plea agreement providing for amendment of the murder count to charge first-degree aggravated manslaughter. N.J.S.A. 2C:11-4a. In exchange for defendant's plea to the downgraded charge, the State recommended a sentence of twenty-five years imprisonment, subject to an 85% period of parole ineligibility as required by NERA. In the plea colloquy, defendant was clearly informed of the 85% parole disqualifier and acknowledged her understanding of it. She does not now contend otherwise. The agreement also obligated defendant to cooperate and testify truthfully if called by the State as a witness against her co-defendant(s).
Defendant signed the supplemental plea form for NERA cases. The form contains four questions. The first asks whether defendant understands she is pleading guilty to a NERA offense; the second asks whether defendant understands she must serve 85% of the sentence before being eligible for parole. *fn2 These two questions were followed by circling the choice "Yes." The third question asks whether defendant understands that the court must impose a term of parole supervision of five years for a first- degree crime *fn3 beginning upon completion of the sentence of incarceration. The fourth question is:
4. Do you understand that if you violate the conditions of your parole supervision that your parole may be revoked and you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed?
Following these two questions neither the "Yes" nor "No" response was circled. There was no mention of the subject during the plea colloquy.
Defendant entered her guilty plea on December 18, 2000. Her sentencing was held in abeyance until May 4, 2001 because of her agreement to testify against her co-defendant, Anderson, who was tried in March 2001. At her sentencing, the prosecutor acknowledged that defendant testified fully and truthfully as agreed. The judge imposed the recommended twenty-five year sentence. As provided in the plea agreement, the judge dismissed all other counts as to defendant. When pronouncing sentence, the judge did not order as part of the sentence the special five-year NERA parole supervision mandated by N.J.S.A. ...