January 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAYWOOD C. BRAXTON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 5, 2008
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 reject a plea of guilty when that court is not independently satisfied that the Rule's prerequisites are met." State ex rel. T.M., 166 N.J. 319, 326 (2001).
In determining whether a defendant understands the consequences of his or her plea, "the court must ensure that defendant [has been] informed of the direct penal consequences of the plea, generally, those relating to sentencing." Pressler, Current N.J. Court Rules, comment 1.4.1 on R. 3:9-2 (2009). A trial court must inform a defendant of the maximum custodial sentence and fine that may be imposed for the offense to which he or she is pleading before the court accepts the plea. Kovack, supra, 91 N.J. at 481-82 (vacating a defendant's sentence and remanding on the ground that the defendant had not been informed of his exposure to a period of parole ineligibility as part of his sentence prior to entering his or her guilty plea). Simply stated, "[w]hen one enters a plea of guilty, [one] should be told what is the worst to expect." Id. at 483 (quoting Berry v. United States, 412 F.2d 189, 192 (3d. Cir. 1969)). It is against these principles that we consider defendant's argument.
A review of question No. 7 on defendant's plea form indicates that he answered "yes" to the question "[d]id you enter a plea of guilty to any charges that require a mandatory period of parole ineligibility or a mandatory extended term?" Immediately following that question, the form provides:
If you are pleading guilty to such a charge, the minimum mandatory period of parole ineligibility is 17 years and 0 months . . . and the maximum period of parole ineligibility can be 75 years and - months . . . and this period cannot be reduced by good time, work, or minimum custody credits.
The plea form does not indicate that an LWOP motion was going to be filed, and if decided adverse to defendant, defendant would be sentenced to a mandatory term of LWOP.
The transcript of the plea discloses the following colloquy among the court, the prosecutor and defense counsel.
PROSECUTOR: And it was the State's position that this was a three strikes case. That is that it would be life without parole, and that the 85 percent law did apply.
There may be a difference of opinion with regard to that, between all the parties in this case. But at this point, it's my understanding that [defendant] is aware of the possibility of that being the ultimate outcome in this case, and I know your [Honor is] going to go through with him what that possibility means. But it is the State's position at this point, even though it's not acknowledged on the plea form, I have 14 days to file the notice of enhanced imprisonment, and I intend to do that with regard to [the] three strikes law, which is under [N.J.S.A. 2C:43-7.1].
DEFENSE COUNSEL: And . . . I understand that [the prosecutor] is going to move for enhanced . . . . So having said that, yes, I've discussed it and, in fact, if you look. . . .
COURT: And importantly, have you discussed what both of you have just placed on the record with the most important individual here, [defendant]?
DEFENSE COUNSEL: Yes. And more to the point, if you look at item seven on the plea form, which I have directed [defendant] to, it shows that because there is, however you work it, it shows that there is a minimum, since this is a second [Graves] offense, and he must receive a term under operation of law, the minimum is 20 years, 17 under [NERA], the maximum is 75 years without parole. And I have directed him to that and he indicates to me that he understands that.
Following the court's colloquy with counsel, the court reviewed the potential sentence with defendant:
COURT: Do you understand the State is going to ask for a so-called application of three strikes, an enhanced sentence, and the application of the 85 percent that you have to serve, whatever sentence was imposed, do you understand that?
DEFENDANT: Correct, right.
COURT: And that as [defense counsel] placed on the record, and discussed with you, the minimum mandatory period would be 17 years and no months?
COURT: And the maximum of parole would be 75 years, do you understand that?
COURT: You understand, you had a chance to discuss that?
THE COURT: With [defense counsel]?
And again, at the end of whatever sentence is imposed, you have to serve 85 percent of it, but at the end I would have to also impose a five-year term of parole, do you understand that?
COURT: Knowing all of this and understanding that this is an open plea agreement, and that there are differences between the defense's position and the State's position, is the plea agreement acceptable to you?
COURT: It is, is that correct?
DEFENDANT: That's right.
We acknowledge that the trial court could have informed defendant in more precise terms that he faced a mandatory LWOP sentence if the court granted the State's sentencing motion. The colloquy indicates that defendant was only advised that he would be sentenced to a term of imprisonment between seventeen years and seventy-five years, not to a mandatory LWOP sentence. However, we disagree with defendant that we should remand this matter, pursuant to Burford and Kovack, to allow him to either withdraw his plea, renegotiate a plea deal, or accept the current sentence. Here, unlike those cases where the defendants entered negotiated pleas, defendant entered an open plea. Moreover, defendant does not challenge the court's determination that he is eligible for sentencing under N.J.S.A. 2C:43-7.1a. That determination having been made, the State cannot enter into a plea agreement for a lesser sentence than LWOP.
We conclude that the more appropriate remedy is to remand the matter to the Law Division to permit defendant to file a motion to withdraw his plea. State v. Johnson, 182 N.J. 232, 241-44 (2005); State v. Bellamy, 178 N.J. 127, 140 (2003). On a motion to withdraw a plea of guilty, the burden rests on defendant to prove that the motion should be granted "to correct a manifest injustice," R. 3:21-1, that is, that he "would not have pleaded guilty had the correct information been supplied." Pressler, Current N.J. Court Rules, comment 1.4.1 on R. 3:9-2 (2009).
We also determine that a Johnson/Bellamy remand is appropriate, because although defendant has asserted that he was unaware of the agreement between the prosecutor and his counsel as to the mandatory nature of the LWOP sentence if the court ruled adversely to him on the motion, the record is devoid of evidence supporting that contention. Remand will permit the trial court to establish a record concerning whether defendant was aware that he faced a mandatory LWOP sentence or whether he believed that he was entitled to withdraw his plea if the sentencing motion was decided against him.
Affirmed, without prejudice to defendant filing a motion in the Law Division to withdraw his plea.