On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-11-0732.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Gilroy.
On November 14, 2002, a Somerset County Grand Jury charged defendant Haywood C. Braxton in a single-count indictment with first-degree armed robbery, N.J.S.A. 2C:15-1a(2). On March 15, 2005, defendant entered an open plea to the indictment. On March 21, 2005, the State filed a motion seeking imposition of a mandatory sentence of life without parole (LWOP) pursuant to the "Three Strikes" law, N.J.S.A. 2C:43-7.1a, defendant having been twice previously convicted of committing acts of armed robbery on separate occasions. On August 9, 2006, the trial court granted the State's motion.
On August 15, 2006, defendant was sentenced to a life term of imprisonment, with life defined as seventy-five years, with an 85% period of parole ineligibility, to run concurrent with sentences imposed on other recent criminal convictions in different counties. The court also imposed all appropriate fines and penalties.
On appeal, defendant argues:
THE COURT SHOULD ORDER A BURFORD*fn1 /KOVACK*fn2 REMAND TO ALLOW DEFENDANT TO WITHDRAW HIS GUILTY PLEA BECAUSE THE JUDGE NEVER PROPERLY EXPLAINED TO HIM THAT IF THE THREE-STRIKES MOTION WERE DECIDED AGAINST HIM, HE WOULD RECEIVE A MANDATORY TERM OF LIFE WITHOUT PAROLE.
We affirm, subject to defendant's right to file a motion in the Law Division to vacate his plea.
Defendant does not challenge the sufficiency of the factual basis supporting his plea to the crime of armed robbery; nor does he contest the court's determination that he was eligible to be sentenced pursuant to N.J.S.A. 2C:43-7.1a. Rather, defendant argues that he was not aware that if the court granted the State's sentencing motion, he faced a mandatory life term of imprisonment.
Defendant contends that, at the time of his plea, the prosecutor and his counsel agreed without his knowledge that after the plea the court would hear a defense motion "urging that it was not 'fair' to subject [defendant] to the mandatory [LWOP] sentence because, in defense counsel's estimation, in some counties prosecutors are more lenient than others in bargaining away LWOP sentences."*fn3 Defendant asserts that the understanding between counsel "was that if the motion was decided against [him], he would receive the mandatory LWOP term, but, if not, he would receive a standard extended[-]term [sentence] from 20 years to life with parole ineligibility set at 85% of the base extended term." Defendant further contends that, because the agreement was never conveyed to him, he "pled guilty believing that his ultimate sentence would simply fall somewhere in the range from 20 years to life with parole ineligibility of anywhere from 17 years to life."
Based on these contentions, defendant argues that in the case of a plea to a No Early Release Act*fn4 (NERA) or three-strikes offense, where the application of NERA or the Three-Strikes law is contested, the plea colloquy must "inform the defendant what the sentence and parole-bar range will be in the event the NERA or LWOP motion is decided against [the] defendant, and what that exposure will be in the event the motion is decided in [the defendant's] favor." Defendant further argues that in such cases, the defendant must: 1) agree to be bound by the court's determination on the motion; and 2) either agree to the range of possible sentences that could be imposed upon him following an adverse determination on the motion; or, with the State's acquiescence, agree that he will be allowed to withdraw his plea if he loses the NERA/LWOP determination. Defendant asserts that because the plea colloquy failed to enlighten him that the court would be obligated to impose a mandatory LWOP sentence if found eligible for sentencing under the Three Strikes statute, this matter should be remanded to the trial court to allow him to make an informed choice of whether to withdraw his plea, renegotiate a plea deal, or accept the current sentence, citing Burford, supra, 163 N.J. at 21, and Kovack, supra, 91 N.J. at 485.
Rule 3:9-2 governs the taking of pleas; in particular, it mandates that a court not accept a guilty plea to a criminal charge without first "determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2. "The specificity and rigor embodied in Rule 3:9-2 manifest a systemic awareness that a defendant waives significant constitutional rights when pleading guilty, which places an affirmative obligation on a court to ...