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State v. Ellis

February 9, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BODIE ELLIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-01807-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 13, 2010

Before Judges Payne and C.L. Miniman.

Defendant Bodie Ellis appeals from an April 18, 2008, judgment of conviction of third-degree possession of cocaine on December 19, 2006, with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7, and third-degree possession of cocaine on December 22, 2006, with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7, on which an aggregate sentence of eight years with forty-three months of parole ineligibility was imposed. We reverse.

Defendant pled guilty to two out of ten counts against him in a fifteen-count indictment pursuant to a plea agreement in which the State agreed to recommend an eight-year term in state prison with forty-three months of parole ineligibility based on defendant's mandatory extended-term eligibility and to seek dismissal of the remaining counts against him.

The plea agreement recited the statutory maximum base terms of five years on each offense and noted that defendant was extended-term eligible. In answer to question #7 on the plea form, defendant admitted that he was pleading guilty to charges "that require a mandatory period of parole ineligibility or a mandatory extended term." Question #7a was then completed as follows:

If you are pleading guilty to such a charge, the minimum mandatory period of parole ineligibility is 3 years and 7 months . . . and the maximum period of parole ineligibility can be 3 years and 7 months . . . and this period cannot be reduced by good time, work, or minimum custody credits.*fn2

The plea hearing was attenuated:

THE COURT: You intend to enter into this guilty plea?

THE DEFENDANT: Yes.

THE COURT: Anybody force you to do that?

THE DEFENDANT: No.

THE COURT: Are you under the influence of any drug or alcohol today?

THE DEFENDANT: No.

THE COURT: You understand you have the right to go to trial and as a result of the guilty plea, you're giving up that right?

THE DEFENDANT: Yes.

THE COURT: Those papers, did you sign them and initial them and go over ...


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