On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2269.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Collester and C.S. Fisher.
The indictment charged that, on September 10, 1998, defendant entered a store in Irvington and, while in the process of robbing the store with his co-defendant, shot a patron in the chest with a handgun. Defendant pled guilty to second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; two counts of first-degree robbery, N.J.S.A. 2C:15-1; first-degree attempted murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).
Defendant entered a guilty plea pursuant to an agreement that called for a maximum twenty-year prison term subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The other counts of the indictment were dismissed.
At the plea hearing, the trial judge indicated he would sentence defendant to a seventeen-year prison term subject to an 85% period of parole ineligibility. Defendant, however, failed to appear for sentencing. He was later arrested, and the sentencing proceeding took place on March 23, 2001, more than eight months after it was originally scheduled to occur.
At sentencing, defendant unsuccessfully moved to withdraw his guilty plea. After appropriate mergers, the judge imposed a twenty-year prison term on one of the robbery convictions and a concurrent twenty-year prison term on the attempted murder conviction, both subject to a seventeen-year period of parole ineligibility as well as a five-year period of parole supervision upon release; a concurrent five-year prison term was imposed on the weapon conviction.
Defendant's direct appeal was placed on an excessive sentencing oral argument calendar. On April 16, 2003, we remanded to the trial court: for a hearing as to the reason defendant did not appear for sentencing on the scheduled date and for the reason he was arrested on January 9, 2001, and for consideration of defendant's right to withdraw his guilty plea if the sentencing judge does not honor his statement at the time of plea that defendant could withdraw his guilty plea if the judge did not impose a concurrent seventeen year sentence with a NERA component. This order does not preclude the judge from sentencing defendant to concurrent seventeen year sentences with the NERA component.
Following our remand, defendant again sought to withdraw his guilty plea. A different judge denied this motion but amended the judgment by imposing only concurrent seventeen-year prison terms with an 85% period of parole ineligibility on the robbery and attempted murder convictions.
Defendant appealed again, presenting the following arguments for our review:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE DEFENDANT DID NOT UNDERSTAND ALL THE PENAL CONSEQUENCES OF THE NO EARLY RELEASE ACT, WHICH DEFENDANT AFFIRMED WOULD HAVE MATERIALLY AFFECTED HIS DECISION TO PLEAD GUILTY.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BEFORE SENTENCING TOOK PLACE, BECAUSE DEFENDANT TESTIFIED THAT HE WAS HIGH WHEN HE MADE THE ...