On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-04-0982.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2012
Before Judges Simonelli and Lisa.
Pursuant to a plea agreement, defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1. In the plea agreement, the State agreed to recommend that defendant be sentenced in the second-degree range to eight years imprisonment subject to an eighty-five percent parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The plea agreement also contained a provision that defendant reserved the right to request release from custody to visit his son in the hospital prior to sentencing and to argue for a sentence of less than eight years at the time of sentencing. That provision unequivocally provided that the "State does not join in either request."
At the plea hearing, defendant acknowledged signing the plea form after reviewing it with his attorney, and he stated, under oath, that he fully understood the terms of his recommended sentence. He proceeded to enter his guilty plea and provide a thorough factual basis establishing his guilt.
Then, after accepting the plea as knowingly and voluntarily entered, the judge addressed defendant's request for presentence release to visit his son. The judge said, "Now, you're going to be released on a bracelet program; do you understand that?"*fn1 Defendant answered affirmatively, and the judge set the terms of the release and the specific dates, encompassing nine days. As it turned out, because of the nature of one of defendant's prior juvenile adjudications, he was not eligible for release under the GPS program, and the jail authorities refused to release him.
Two months later, when the case came before the court for sentencing, the judge was informed of these events. Defendant requested that, in lieu of the GPS program release, the court postpone his sentencing and release him on his own recognizance to visit his son, who had been discharged from the hospital by that time. The judge refused and made it clear that his willingness to authorize defendant's release was conditioned upon doing so under the GPS program, with its attendant safeguards. The judge did not consider defendant suitable for release on his own recognizance. Further, in the two months that had elapsed, defense counsel had not notified the court of any problem with the anticipated GPS release.
Defendant then sought to withdraw his guilty plea, claiming that he would have never accepted the plea bargain and pled guilty if he knew he would not be released prior to beginning his sentence. The judge found this an insufficient basis to allow withdrawal of the plea, and he proceeded to sentence defendant in accordance with the recommendation in the plea agreement.
Defendant now appeals and argues:
I. THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA, CONTRARY TO PRINCIPLES OF FUNDAMENTAL FAIRNESS, BECAUSE DEFENDANT'S REASONABLE EXPECTATIONS PURSUANT TO THE GUILTY PLEA WERE NOT FULFILLED. (U.S. Const. amends. V, VI, VIII, AND XIV; N.J. Const. art. I, [paras.] 1, 10[)].
II. THE SENTENCE OF EIGHT YEARS WITH 85%
PAROLE INELIGIBILITY WAS IMPOSED WITHOUT CONSIDERATION OF A SUBSTANTIAL MITIGATING FACTOR, AND SHOULD BE REDUCED.
These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm. We ...