June 5, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PATRICK H. FRANCIS,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-02-0191.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 16, 2007
Before Judges Cuff and Winkelstein.
Defendant Patrick H. Francis entered guilty pleas to second degree aggravated assault, unlawful taking of means of conveyance and third degree unlawful possession of a weapon in 1998. He was sentenced to an eight-year NERA*fn2 term subject to a three-year period of parole supervision following completion of his base term. Defendant appeals from the July 13, 2005 order denying his petition for post-conviction relief in which he sought to withdraw his guilty pleas. Following an evidentiary hearing, the judge found that defendant was fully informed of the penal consequences of his plea. Nevertheless, he eliminated the NERA parole supervision term. Having concluded that the elimination of the parole supervision term created an illegal sentence, we remand for reconsideration.
On appeal, defendant raises the following arguments:
THE DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF SHOULD BE GRANTED
THE COURT SHOULD SET ASIDE THE DEFENDANT'S PLEA AGREEMENT IN LIGHT OF THE FACT THAT THE DEFENDANT WAS NEVER MADE AWARE OF THE FULL CONSEQUENCE OF THAT AGREEMENT
THE DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.
THE PRESIDING JUDGE COMMITTED REVERSIBLE ERROR WHEN HE ORDERED THAT THE JUDGMENT OF CONVICTION DATED FEBRUARY 28, 2002 BE VACATED AND THE JUDGMENT OF CONVICTION DATED JUNE 12, 1998 BE REINSTATED
THE SENTENCE IMPOSED BY THE COURT PURSUANT TO DEFENDANT'S PLEA AGREEMENT WAS ILLEGAL AND EXCESSIVE
A petition for post-conviction relief provides a remedy for a sentence "in excess of or otherwise not in accordance with the sentence authorized by law." R. 3:22-2(c). Rule 3:9-2 provides that in order to accept a guilty plea, a judge must be satisfied that the plea is knowing, intelligent and voluntary. This standard is met only when the defendant understands the charges and is aware of the direct consequences of the plea, including the penal consequences. State v. Johnson, 182 N.J. 232, 236 (2005).
Rule 3:21-1 provides that a defendant may withdraw a guilty plea only when withdrawal is necessary to prevent a "'manifest injustice.'" Id. at 237. When a defendant seeks to withdraw a guilty plea following the imposition of sentence, "'the court weighs more heavily the State's interest in finality and applies a more stringent standard' than that which is applied to a withdrawal application made before sentencing has occurred." Ibid. (quoting State v. McQuaid, 147 N.J. 464, 487 (1997)).
In Johnson, the Court held that the parole supervision term associated with a NERA term is "a direct, penal consequence" of a plea and the failure to inform the defendant of this aspect of his sentence entitled him to seek the vacation of his plea. Id. at 241. The plea should be vacated if the defendant can show "that the mistaken belief about, or lack of knowledge of, a penal consequence of a plea was material to the decision to plead guilty and prejudiced the defendant." Ibid.
Here, the judge properly conducted an evidentiary hearing to determine whether defendant had been informed of the NERA period of parole supervision, and, if not, whether his lack of knowledge of this penal consequence of his plea was material to his decision. Following the hearing, the judge found that defendant was informed of the NERA three-year parole supervision term; thus he denied the petition to set aside the guilty plea. The judge found that the plea agreement contained the supplemental NERA form, that this form specifically referred to a three-year supervision term, that the transcript of the plea proceeding demonstrated defendant knew the sentence was subject to NERA, and that defendant had read and understood every page of the plea agreement. These findings are well-supported by the record and cannot be disturbed. State v. Locurto, 157 N.J. 463, 470-71 (1999). We, therefore, affirm the order denying defendant's petition for post-conviction relief.
Having denied the petition and after eliciting the consent of the State, the judge proceeded to modify the sentence to eliminate the three-year NERA parole supervision term. Thus, the sentence was amended to an eight-year term of imprisonment subject to an 85% parole ineligibility term.
The State has not appealed from this aspect of the order. Perhaps the State believed that a cross-appeal was barred given its consent at the July 8, 2005 evidentiary hearing. Nevertheless, we are confronted with an illegal sentence. State v. Johnson, supra, 182 N.J. at 240; State v. Freudenberger, 358 N.J. Super. 162, 167-70 (App. Div. 2003); see also State v. Kearns, ___ N.J. Super. ___, ___ (App. Div. 2007) (slip op. at 9) (a sentence with a mandatory NERA period of parole ineligibility cannot be reduced). The minimum mandatory term and the parole supervision term are mandatory aspects of NERA. Johnson, supra, 182 N.J. at 240.
We are not free to ignore the illegality of the sentence. We, therefore, remand for further proceedings at which the State and defendant may address this issue and the judge may reconsider the disposition of the petition.
Affirmed in part; remanded in part. We do not retain jurisdiction.