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State v. Johnson

January 26, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KAA'WONE JOHNSON, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

[NOTE: This is a companion case to State v. Rosado, A-8-04, also filed today.]

The issue in this appeal is whether Kaa'Wone Johnson's plea agreement must be set aside because he was not informed about a three-year period of extended parole supervision under the No Early Release Act, N.J.S.A. 2C:

43-7.2 (NERA).

On October 21, 1997, Johnson shot three people on a New Jersey Transit bus following an argument over the volume of his portable radio. Two of the victims suffered minor injuries and a third victim was paralyzed. Johnson entered into a plea agreement in which he pled guilty to three counts of second-degree aggravated assault and to one count of second-degree possession of a weapon for an unlawful purpose. The State recommended three consecutive five-year sentences on the assault charges, subject to NERA's eighty-five percent period of parole ineligibility. Also, on the possession charge, the State recommended one five-year term of imprisonment with a three-year period of parole ineligibility under the Graves Act, N.J.S.A. 2C: 43-6c, to be served concurrently.

Johnson does not dispute on appeal that NERA applies, rendering him subject to a minimum period of parole ineligibility of eighty-five percent of the sentence and to a three-year term of parole supervision. N.J.S.A. 2C:

43-7.2c. The crux of the issue is that Johnson was not informed specifically about the three-year period of parole supervision when, at the time that he entered into the plea agreement, he was being advised about the eighty-five percent period of parole ineligibility. During the plea colloquy, neither the trial court nor the prosecutor mentioned the period of parole supervision. The court sentenced Johnson to an aggregate prison term of fifteen years, subject to the eighty-five percent period of parole ineligibility on the assault charges. It further imposed a sentence of five years to be served concurrently, subject to a three-year period of parole ineligibility, on the possession charge. At Johnson's sentencing hearing, the trial court did not include the three-year period of parole supervision under NERA when pronouncing Johnson's sentence. However, the Judgment of Conviction and Order for Commitment indicates that for each of the three counts of aggravated assault, Johnson would have to serve "3 years of parole supervision upon release."

The Appellate Division affirmed, by order, the sentence imposed. We granted certification, State v. Johnson, The opinion of the court was delivered by: Justice LaVECCHIA

Argued November 8, 2004

After entering into a plea agreement and after having been sentenced in accordance with the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), defendant, Kaa'Wone Johnson, appealed his sentence. Defendant contends that his guilty plea must be set aside because he was not informed about NERA's period of extended parole supervision. The Appellate Division affirmed, by order, the sentence imposed. We granted certification, State v. Johnson, 180 N.J. 454 (2004), and now reverse and remand.

I.

A brief summary of the facts will provide background for the question presented.

On the morning of October 21, 1997, defendant shot three people on a New Jersey Transit bus. Defendant entered the bus carrying a portable radio playing at high volume. While the bus was en route through Newark, an argument erupted when defendant was asked by a fellow passenger to turn down the volume. Defendant pulled out a nine-millimeter handgun and fired five to seven shots. Three individuals were hit. Two suffered minor injuries; the third victim was paralyzed as a result of having been shot in the chest. Defendant fled, but was located siX days later and arrested.

In connection with the shooting, defendant was charged with one count of first-degree attempted murder, three counts of second-degree assault, third-degree possession of a weapon, and second-degree possession of a weapon for an unlawful purpose.

He entered into a plea agreement in which he pled guilty to three counts of second-degree aggravated assault and to one count of second-degree possession of a weapon for an unlawful purpose. The remaining charges were dismissed. The State recommended three consecutive five-year sentences on the assault charges, subject to NERA's eighty-five percent period of parole ineligibility. Also, on the possession charge, the State recommended one five-year term of ...


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