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State v. Ross

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HAKIM ROSS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-12-3795.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 24, 2008

Before Judges Skillman and Winkelstein.

Defendant was indicted for first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); third- degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. Defendant entered into a plea bargain under which he agreed to plead guilty to the aggravated assault and possession of a weapon for an unlawful purpose charges and the State agreed to dismiss the other charges and to recommend a sentence not to exceed five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At sentencing, the prosecutor revised his prior sentencing recommendation, based on a discussion with the victim, and asked the court to sentence defendant as a third-degree offender and impose a four-year term of imprisonment, subject to NERA. The trial court accepted this recommendation and imposed a four-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by NERA, for the aggravated assault. The court merged defendant's conviction for possession of a weapon for an unlawful purpose.

Defendant did not file a direct appeal from his conviction and sentence. However, in December 2006, he filed a petition for post-conviction relief on the ground that neither his trial counsel nor the trial court had advised him of the three-year period of extended parole supervision that he was required to serve under NERA after his release from incarceration. The trial court denied defendant's petition without conducting an evidentiary hearing.

In State v. Johnson, 182 N.J. 232, 240-41 (2005), the Court held that a defendant who pleads guilty to a NERA offense must be advised of the extended period of parole supervision provided under NERA and that a defendant who is not so advised is entitled to seek vacation of his plea. See also State v. Freudenberger, 358 N.J. Super. 162, 167-70 (App. Div. 2003). However, a defendant is only entitled to vacation of the plea if the failure to inform him of the extended period of parole supervision mandated by NERA "materially affected his decision to plead guilty." Johnson, supra, 182 N.J. at 244.

Defendant was not notified of the NERA period of parole ineligibility on the plea form he executed, at the plea hearing or at sentencing.*fn1 In his petition for post-conviction relief, defendant alleged that he would not have accepted the State's plea offer if he had been aware of the extended period of parole supervision to which he would be subject after his release from incarceration. He also alleged that his trial counsel had been ineffective in failing to inform him of that period of parole supervision.

After hearing argument by counsel, the trial court rejected defendant's claims. The court stated that in view of the benefits to defendant of the State's plea offer, "I don't believe in any form or fashion that [awareness of] the three-year period of parole supervision would have changed [defendant's] mind" in accepting that plea. The court also concluded that because defendant's awareness of the period of extended parole supervision would not have changed his decision to plead guilty, his trial counsel's alleged failure to inform him of that consequence of a NERA sentence did not constitute ineffective assistance of counsel.

A defendant who was not informed of all the penal consequences of a plea is entitled to have the plea vacated unless "knowledge of the consequences would not have made any difference in the defendant's decision to plead." State v. Howard, 110 N.J. 113, 123 (1988). Consequently, the materiality of information that the court and counsel communicated, or failed to communicate, to a defendant before he made a decision to plead guilty does not rest on the court's assessment of whether the plea accepted by the defendant was favorable. A defendant has the right to reject even a very lenient plea offer.

Therefore, there must be a remand for an evidentiary hearing. At that hearing, the parties may present evidence regarding any information defendant's trial counsel may have communicated to him regarding the period of extended parole supervision mandated by NERA, and if there were no such communications, whether knowledge of that period of parole supervision would have materially affected his decision to plead guilty. Defendant should of course be afforded an opportunity to testify at the hearing.

Accordingly, the order denying defendant's petition for post-conviction relief is reversed, and the case is remanded to the trial court for further proceedings in conformity with this opinion.


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