On certification to the Superior Court, Appellate Division, whose opinion is reported at SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
WEFING, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers whether a defendant who has been sentenced to consecutive terms under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), must serve the periods of post-release parole supervision that are part of a NERA sentence consecutively or concurrently; and whether State v. Hess, 207 N.J. 123 (2011), requires invalidation of a portion of a plea bargain under which defendant agreed that his attorney would not argue for concurrent sentences, as opposed to the consecutive sentences to which he had agreed.
A grand jury returned a fifty-count indictment against defendant for offenses against his wife and children. Defendant entered a negotiated plea of guilty to three counts of second-degree aggravated assault upon his wife that occurred during three separate periods of time in 2006. The State agreed to recommend sentences of six years, seven years, and seven years, respectively, for the three offenses, each subject to NERA and to run consecutively to the others. The remaining forty-seven counts would be dismissed. Defendant agreed to waive any argument against imposing consecutive sentences. At the plea hearing, the trial court carefully questioned defendant about his understanding of and agreement with the terms of the plea, the crimes charged, and the factual basis for his plea. Defendant admitted that during the periods of time in question, he burned his wife's arm and thigh with hot oven racks from a toaster oven; as a result, she was hospitalized for life-threatening infections and skin grafts; and he knew it would cause her serious permanent disfigurement because of previous injuries inflicted in the same areas.
Defendant acknowledged that without the plea agreement, each crime carried a maximum term of ten years. He confirmed that he understood that if he went to trial and was convicted of all charges, he theoretically could receive a sentence of five hundred years. The court noted that each conviction carried a three-year period of parole supervision after his release from prison. Defendant acknowledged that he understood that because of the consecutive sentences, the parole periods would be consecutive, and that he was waiving any objection to the consecutive sentences. He assured the court that no one had pressured him to plead guilty and he was satisfied with his attorney's services. The court found that defendant had freely and voluntarily entered into the plea agreement, in part based on defendant's demeanor by engaging the court in discussions, asking questions, and being intricately involved in the negotiation process and accepting responsibility for what he did.
Prior to sentencing, defendant's attorney submitted a sentencing memorandum urging the trial court that various mitigating factors warranted a sentence at the lowest range for a second-degree conviction. The attorney also argued that the parole periods should be served concurrently, not consecutively. At the sentencing hearing, the court heard from the State, defendant's attorney, defendant's wife, and defendant himself, who expressed remorse and asked for a sentence at the low part of the range. The court analyzed the legal arguments, addressed the aggravating and mitigating factors, concluded that the sentence recommended by the State at the time of the plea was appropriate, and imposed that sentence with the periods of parole supervision to be served consecutively. The court concluded that even if defendant had not stipulated to the three consecutive sentences, this was appropriate under State v. Yarbough, 100 N.J. 627 (1985), because he had pled guilty to committing separate acts of violence against his wife that occurred at separate times. The court also pointed out that defendant's attorney had engaged in "fine advocacy," and his tenacious representation led to defendant facing only twenty years rather than multiple life sentences.
Defendant appealed his sentence. The Appellate Division ruled that although defendant was sentenced to consecutive NERA prison terms, the parole supervision periods must be served concurrently because NERA states that parole "shall commence immediately upon his release from incarceration." 413 N.J. Super. 480 (App. Div. 2010). The Court granted the State's petition and defendant's cross-petition for certification. 204 N.J. 39 (2010).
HELD: When a defendant has been sentenced to consecutive custodial terms under NERA, the periods of parole supervision that follow must be served consecutively. There is no need to determine whether Hess applies here because the trial court recognized its inherent sentencing authority, engaged in its own Yarbough analysis, and did not abuse its discretion in concluding that it was appropriate to impose consecutive sentences for three separate assaults defendant admitted committing upon his wife during three separate periods of time.
1. NERA mandates that a defendant convicted of certain crimes is not eligible for parole before serving at least eighty-five percent of the sentence. N.J.S.A. 2C:43-7.2. Unlike the general parole statute, NERA's parole provision directs a sentencing court to impose a three-year parole supervision period for second-degree crimes. NERA parole begins when NERA custody is completed "unless the defendant is serving a sentence of incarceration for another crime at the time he completes the sentence"; in that case, the parole period "shall commence immediately upon the defendant's release from incarceration." Also, if a defendant violates parole, he may be returned to custody for the balance of the NERA custodial term as well as the remaining length of the parole period. (pp. 18-21)
2. In determining whether parole must be consecutive when consecutive prison terms are imposed under NERA, the Court must ascertain the Legislature's intent by looking first to NERA's plain language and considering the statute as a whole. It also is appropriate to examine legislative history to measure which construction of the words will achieve the Legislature's goals. NERA's text and history do not specifically answer the precise question before the Court. The history does, however, state the Legislature's intent "to increase prison time for offenders committing the most serious crimes in society." Also, before enactment, concerns were raised that the bill was silent on post-release supervision and that the fifteen percent remaining on a custodial term after release would not deter an inmate from committing another violent crime. The bill was amended to require mandatory periods of parole. (pp. 21-25)
3. The conclusion that NERA periods of parole supervision run consecutively when consecutive NERA sentences are imposed is consistent with the Legislature's objective of protecting the public from the risk posed by the release of violent offenders. The Court rejects the argument that the word "immediately" in the statute calls for concurrent periods of parole supervision. This view is reinforced by the language in the statute directing that a court imposing a sentence under NERA "shall also impose" a specific parole period. If defendant were to serve concurrent parole periods after completing consecutive custodial NERA terms, he would not serve the full NERA sentence. (pp. 25-26)
4. This case is distinguishable from Hess, a case in which the Court held that a defendant was deprived of the effective assistance of counsel because the plea agreement restricted counsel's right to argue for a lesser sentence. Defendant's attorney submitted a sentencing memorandum, while the attorney for Hess told the sentencing court that his hands were "tied" by the plea bargain. Counsel for Hess did not inform the court of evidence indicating that Hess was a battered woman who feared for her life. Here, there is no indication of any withholding of information that could bear on the sentencing analysis; indeed, the trial court commented upon the "fine advocacy" of defendant's attorney. Having noted those distinctions, the Court need not determine whether Hess applies here. In Yarbough, the Court directed sentencing courts to consider whether the crimes involved separate acts of violence and whether the crimes were committed at different times or places. Defendant admitted to three specific, separate assaults upon his wife during three separate periods of time. This trial court recognized its inherent sentencing authority, engaged in its own analysis of Yarbough, and concluded that the appropriate punishment for defendant's separate crimes was consecutive periods of incarceration. That was not an abuse of its sentencing discretion. (pp. 26-31)
The judgment of the Appellate Division is REVERSED and the sentence imposed by the trial court is REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, HOENS, and PATTERSON join in JUDGE WEFING's opinion.
JUDGE WEFING (temporarily assigned) delivered the opinion of the Court.
In this appeal we are called upon to consider whether the Appellate Division correctly applied the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), when it concluded that a defendant who has been sentenced to three consecutive terms under that statute serves the periods of post-release parole supervision that are part of a NERA sentence concurrently rather than consecutively. We conclude that the periods of parole supervision must be served consecutively and thus reverse the contrary determination of the Appellate Division.
We are also called upon to consider in conjunction with this appeal whether State v. Hess, 207 N.J. 123 (2011), mandates that we strike down a provision of defendant's plea bargain, under which he agreed his attorney would not seek at the time of sentencing to have the trial court impose a concurrent sentence, as opposed to the consecutive sentence to which he had agreed. After carefully reviewing the record in this matter, we can perceive no basis to intervene in defendant's sentence.
These questions come to us in the following factual and procedural context. Defendant was married to his wife for more than twenty years. Together, they had three children. The record before us does not indicate anything untoward between defendant and his wife for most of those years. For reasons that cannot be fathomed, and are indeed immaterial, defendant began to abuse his wife physically. She had to seek medical attention and on several occasions had to be hospitalized to treat the injuries she received at his hand. Despite the pleas of the physician who treated her for her injuries, she resisted seeking legal recourse. She persisted in this course for an extended period of time. Eventually, however, she acceded to these entreaties and defendant was arrested and charged for his assaults upon her. A grand jury originally returned an indictment against him that contained more than one hundred counts, alleging offenses against defendant's wife and two of his children for the period from September 2005 through December 2006. The indictment was later amended, and the number of counts was reduced to fifty.
On March 28, 2008, defendant entered a negotiated plea of guilty to three of the fifty counts. In light of the nature of the arguments presented to us, we deem it important to set forth, in more detail than we otherwise might, the details of the proceedings on that date.
The prosecutor, in placing the terms of the plea bargain upon the record, described it in the following manner: defendant agreed to plead guilty to Count 9, charging him with second-degree aggravated assault upon his wife in violation of N.J.S.A. 2C:12-1(b) during the period between June 12, 2006 and July 17, 2006, and the State would recommend a sentence not to exceed six years, subject to NERA; to Count 13, charging him with second-degree aggravated assault upon his wife in violation of N.J.S.A. 2C:12-1(b) during the period between September 29, 2006 and October 3, 2006, and the State would recommend a sentence not to exceed seven years, subject to NERA, to be served consecutively to the sentence to be imposed under Count 9; and to Count 22, charging him with second-degree aggravated assault upon his wife in violation of N.J.S.A. 2C:12-1(b) during the period between December 11, 2006 and December 14, 2006, and the State would recommend a sentence not to exceed seven years, subject to NERA, to be served consecutively to the sentences to be imposed under Counts 9 and 13. The State agreed as part of the bargain that the remaining forty-seven counts of the indictment would be dismissed. The assistant prosecutor handling the prosecution also noted that the agreement reached included the following provision:
He [defendant] also agrees to waive any claim -- including any claim under State -vs- Yarbough regarding [the] consecutive nature of the sentence for these counts. In other words, he agrees that he can't argue or will not argue that those sentences could not be imposed consecutively.
The assistant prosecutor also noted that defendant agreed to acknowledge the accuracy of the records maintained by the physician who treated his wife for the injuries she received from him. Defendant's counsel acknowledged that the assistant prosecutor had correctly recited the terms of the plea bargain.
Defendant was then placed under oath, and the trial court carefully questioned him about his understanding of, and his concurrence with, the terms of the agreement. The trial court then questioned defendant with respect to his guilty plea to Count 9.
Q. Now, I draw your attention back to June 12, 2006 through the time period of 7/17, July 17 of 2006. Between those dates did you burn your wife's arm with hot oven racks from a toaster oven?
A. Yes. Q. And you did realize on that date that due to previous injuries that had been inflicted to that same area that you knew or had reason to believe it was going to cause serious permanent injury?
A. Yes. Q. And what I mean by serious permanent injury as defined by statute, that you knew it was going to cause serious permanent disfigurement, correct?
A. Yes. Q. And as a result of those burns, your wife had to be hospitalized for severe and life-threatening infection?
The trial court then took up defendant's plea of guilty to Count 13.
Q. All right. Now, under Count 13. Count 13 alleges that between 29th day of September, 2006 and October 3, 2006 you committed another aggravated assault of the second-degree . . ., when you attempted to cause serious bodily injury to [your wife] or caused serious bodily injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life caused such serious bodily injury. Again, another second-degree crime that could carry the maximum ten years 85 percent without the benefit of this plea agreement.
Do you understand that charge?
Q. Now, between those dates, September 29th of 2006 and October 3 of 2006, did you again burn your wife's arm with the hot oven racks from the toaster oven?
A. Yes. Q. Same arm you burned on the prior occasion?
A. Yes. Q. At that point your wife had to be hospitalized for skin graft to her ...