On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-02-0648 and 98-02-0649.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
This appeal raises the question of whether an incorrect notation of years of parole ineligibility to which defendant would be sentenced invalidates an otherwise enforceable plea agreement. We hold that in this case it does not, and thereby affirm the denial of defendant's post-conviction relief (PCR) petition.
Defendant had just turned seventeen when he waived the jurisdiction of the family court over his murder and unrelated second-degree assault charges, and consented to have the matters addressed in adult court. Immediately following the waiver hearing on February 18, 1998, defendant entered a guilty plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and an unrelated second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).
Pursuant to the negotiated plea agreement, on April 3, 1998, defendant was sentenced to twenty-four years in state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the reduced charge of aggravated manslaughter, and a concurrent ten years on the unrelated aggravated assault, also subject to NERA. Defendant thereafter filed an appeal of the sentence pursuant to Rule 2:9-11, but the appeal was denied and the sentence affirmed.
Defendant then filed a pro se petition for PCR on January 6, 2003,*fn1 counsel was subsequently assigned, and PCR denied on August 17, 2006. The only issues raised before the PCR judge were whether defendant made a knowing, intelligent and voluntary waiver of the jurisdiction of the family court, and a knowing, voluntary and intelligent waiver of his right to trial. Defendant claimed he was forced into the waiver and the entry of the guilty plea by his attorney. When the motion was denied, this appeal followed.
During the course of the juvenile waiver hearing, defense counsel said:
Judge, the juvenile will be entering a plea to an accusation charging aggravated manslaughter, which is a first degree offense. And the sentencing on that will be 24 years subject to the eighty-five percent rule. In other words, the juvenile won't be eligible for parole for a period of 20 years.
Defense counsel also discussed in detail the potential sentencing faced by the defendant if convicted at trial. She explained that defendant's decision to waive jurisdiction was attributable, in part, to receipt of an unfavorable expert opinion. A juvenile must present favorable expert testimony in order to establish the "probability of rehabilitation prior to reaching the age of nineteen" in order to meet his heavy statutory burden when attempting to defeat a waiver application pursuant to N.J.S.A. 2A:4A-26(a). State v. Scott, 141 N.J. 457, 464 (1995). Having considered all the alternatives, defense counsel stated that she and her client had determined it was in his best interests to waive jurisdiction and enter guilty pleas.
At the plea hearing, which immediately followed, the prosecutor repeatedly referred to the aggregate time to which defendant would be sentenced as twenty-four years subject to 85% parole ineligibility. On the plea form signed by defendant,*fn2 paragraph thirteen notes that the twenty-four year term of imprisonment to which defendant would be sentenced was subject to the "85% law." In paragraph twenty of the form, defendant agreed to waive notice of the applicability of the "85% law."
In paragraph seven, however, someone, presumably defense counsel, erroneously noted that the charge requires a mandatory term of parole ...