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).
[NOTE: This is a companion case to State v. Rosado , A-8-04, also filed today.]
Argued November 8, 2004 -- Decided January 26, 2005
LaVECCHIA, J., writing for a unanimous Court.
The issue in this appeal is whether Kaa’Wone Johnson’s plea agreement must be set aside because he was not informed about a three-year period of extended parole supervision under the No Early Release Act, N.J.S.A. 2C: 43-7.2 (NERA).
On October 21, 1997, Johnson shot three people on a New Jersey Transit
bus following an argument over the volume of his portable radio. Two of
the victims suffered minor injuries and a third victim was paralyzed. Johnson entered
into a plea agreement in which he pled guilty to three counts of
second-degree aggravated assault and to one count of second-degree possession of a weapon
for an unlawful purpose. The State recommended three consecutive five-year sentences on the
assault charges, subject to NERA’s eighty-five percent period of parole ineligibility. Also, on
the possession charge, the State recommended one five-year term of imprisonment with a
three-year period of parole ineligibility under the Graves Act, N.J.S.A. 2C: 43-6c, to
be served concurrently.
Johnson does not dispute on appeal that NERA applies, rendering him subject to
a minimum period of parole ineligibility of eighty-five percent of the sentence and
to a three-year term of parole supervision. N.J.S.A. 2C: 43-7.2c. The crux of
the issue is that Johnson was not informed specifically about the three-year period
of parole supervision when, at the time that he entered into the plea
agreement, he was being advised about the eighty-five percent period of parole ineligibility.
During the plea colloquy, neither the trial court nor the prosecutor mentioned the
period of parole supervision. The court sentenced Johnson to an aggregate prison term
of fifteen years, subject to the eighty-five percent period of parole ineligibility on
the assault charges. It further imposed a sentence of five years to be
served concurrently, subject to a three-year period of parole ineligibility, on the possession
charge. At Johnson’s sentencing hearing, the trial court did not include the three-year
period of parole supervision under NERA when pronouncing Johnson’s sentence. However, the Judgment
of Conviction and Order for Commitment indicates that for each of the three
counts of aggravated assault, Johnson would have to serve “3 years of parole
supervision upon release.”
The Appellate Division affirmed, by order, the sentence imposed. We granted certification, State
v. Johnson,
180 N.J. 454 (2004), and now reverse and remand.
HELD: Being subject to the mandatory period of parole supervision under the No
Early Release Act (NERA) constituted a direct, penal consequence of Johnson’s plea to
three counts of second-degree aggravated assault. Because Johnson was not informed about the
consequences of being subject to NERA’s fixed period of parole supervision, he is
entitled to seek the vacation of his plea.
1. A guilty plea may be accepted as part of a plea bargain
when the court is assured that the defendant enters into the plea knowingly,
intelligently and voluntarily. R. 3:9-2. Although a court is not responsible for informing
a defendant of all consequences flowing from a guilty plea, at a minimum
the court must ensure that the defendant is made fully aware of those
consequences that are “direct” or “penal.” State v. Howard,
110 N.J. 113, 122
(1988). Clarity as to the direct and penal consequences of a defendant’s guilty
plea promotes the binding resolution of charges because it serves to ensure that
a defendant’s “expectations [are] reasonably grounded in the terms of the plea bargain.”
State v. Marzolf,
79 N.J. 167, 183 (1979). In respect of the public
interest in final and binding proceedings, the Court Rules permit a court to
vacate a guilty plea after sentencing only if withdrawal of the plea is
necessary to correct a “manifest injustice.” R. 3:21-1. (Pp. 5-6)
2. To reduce recidivism, NERA increases the real time period of incarceration of
defendants who commit first- and second-degree “violent” crimes by requiring that such defendants
serve at least eighty-five percent of the sentence imposed. N.J.S.A. 2C: 43-7.2a. Moreover,
NERA adds a mandatory period of post-release supervision. N.J.S.A. 2C: 43-7.2c, which subjects
a NERA defendant to greater restraints after release from prison than otherwise would
have applied to a non-NERA defendant. We have recognized that penal consequences attach
to a loss of a parole opportunity and, accordingly, have required trial courts
to establish on the record that a pleading defendant is aware of any
such loss that is part of the sentence to be imposed. State v.
Kovack,
91 N.J. 476, 483 (1982). Although not presenting a loss of a
parole opportunity, the present appeal warrants consideration of the harsh consequences imposed on
Johnson by NERA’s mandatory period of parole supervision, under which the fixed period
of Johnson’s supervision may extend beyond the term of the original sentence. Moreover,
violation of that parole supervision could subject Johnson to additional incarceration for a
length of time that could make the custodial sentence, in the aggregate, far
exceed the original sentence imposed as part of the plea bargain. Thus, the
period of NERA parole supervision constitutes both a direct and penal consequence about
which Johnson, in his plea colloquy and plea form, was not informed. (Pp.
7-13)
3. A defendant seeking relief under R. 3:21-1 also must show that the
mistaken belief about, or lack of knowledge of, a penal consequence of a
plea was material to the decision to plead guilty and prejudiced the defendant.
We reiterate today that a defendant must demonstrate how the omission of information
about NERA materially affected the defendant’s decision to plead guilty. To demonstrate manifest
injustice, Johnson must show that the lack of information prejudiced him in making
his decision to plead. Johnson must be allowed the opportunity to make that
demonstration. Therefore, it is necessary to remand this matter to the trial court
to allow Johnson a materiality hearing on his application under R. 3:21-1. If,
on remand, the trial court determines that the plea agreement must be rejected,
Johnson will have three options. Johnson may: (1) renegotiate the plea agreement, if
the State is willing to do so; (2) withdraw his guilty plea (subject
to reinstatement of the dismissed counts) and proceed to trial; or (3) withdraw
the motion to be resentenced and accept reimposition of the original sentence. (Pp.
13-17)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the Law Division for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in
JUSTICE LaVECCHIA’s opinion.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAA’WONE JOHNSON,
Defendant-Appellant.
Argued November 8, 2004 – Decided January 26, 2005
On certification to the Superior Court, Appellate Division.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne
Smith Segars, Public Defender, attorney).
Gary A. Thomas, Special Deputy Attorney General, argued the cause for respondent (Paula
T. Dow, Assistant Attorney General, Acting Essex County Prosecutor, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
After entering into a plea agreement and after having been sentenced in accordance
with the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), defendant,
Kaa’Wone Johnson, appealed his sentence. Defendant contends that his guilty plea must be
set aside because he was not informed about NERA’s period of extended parole
supervision. The Appellate Division affirmed, by order, the sentence imposed. We granted certification,
State v. Johnson,
180 N.J. 454 (2004), and now reverse and remand.
I.
A brief summary of the facts will provide background for the question presented.
On the morning of October 21, 1997, defendant shot three people on a
New Jersey Transit bus. Defendant entered the bus carrying a portable radio playing
at high volume. While the bus was en route through Newark, an argument
erupted when defendant was asked by a fellow passenger to turn down the
volume. Defendant pulled out a nine-millimeter handgun and fired five to seven shots.
Three individuals were hit. Two suffered minor injuries; the third victim was paralyzed
as a result of having been shot in the chest. Defendant fled, but
was located six days later and arrested.
In connection with the shooting, defendant was charged with one count of first-degree
attempted murder, three counts of second-degree assault, third-degree possession of a weapon, and
second-degree possession of a weapon for an unlawful purpose. He entered into a
plea agreement in which he pled guilty to three counts of second-degree aggravated
assault and to one count of second-degree possession of a weapon for an
unlawful purpose. The remaining charges were dismissed. The State recommended three consecutive five-year
sentences on the assault charges, subject to NERA’s eighty-five percent period of parole
ineligibility. Also, on the possession charge, the State recommended one five-year term of
imprisonment with a three-year period of parole ineligibility under the Graves Act, N.J.S.A.
2C:43-6c, to be served concurrently.
Defendant does not dispute on appeal that NERA applies, pursuant to N.J.S.A. 2C:43-7.2d(4),
to each of the assault charges to which he pled, rendering him subject
to a minimum period of parole ineligibility of eighty-five percent of the sentence
and to a three-year term of parole supervision. N.J.S.A. 2C:43-7.2c. The crux of
the issue is that defendant was not informed specifically about the three-year period
of parole supervision when, at the time that he entered into the plea
agreement, he was being advised about the eighty-five percent period of parole ineligibility.
During the plea colloquy, neither the trial court nor the prosecutor mentioned the
period of parole supervision. The plea form signed by defendant contained no information
in respect of the period of parole supervision, although it did contain a
question referencing NERA. Defendant was asked on the form whether he had entered
a guilty plea for any charges that demanded a mandatory period of parole
ineligibility and he circled “yes” next to that question. The form then explained
that, in respect of the charges to which defendant was pleading guilty, the
minimum mandatory period of parole ineligibility was three years and the maximum period
of parole ineligibility was ten years. And, in the section of the form
setting forth the sentence recommended by the prosecutor, hand-written into the form was
“15 years subject to 85% rule; no contact with victims.”
See footnote 1
The court sentenced defendant to an aggregate prison term of fifteen years, subject
to the eighty-five percent period of parole ineligibility on the assault charges. It
further imposed a sentence of five years to be served concurrently, subject to
a three-year period of parole ineligibility, on the possession charge. At defendant’s sentencing
hearing, the trial court did not include the three-year period of parole supervision
under NERA when pronouncing defendant’s sentence. However, the Judgment of Conviction and Order
for Commitment indicates that for each of the three counts of aggravated assault,
defendant would have to serve “3 years of parole supervision upon release.”
We now consider whether defendant may seek to vacate his guilty plea.
II.
A guilty plea may be accepted as part of a plea bargain when
the court is assured that the defendant enters into the plea knowingly, intelligently
and voluntarily. R. 3:9-2. For a plea to be knowing, intelligent and voluntary,
the defendant must understand the nature of the charge and the consequences of
the plea. Ibid.
Although a court is not responsible for informing a defendant of all consequences
flowing from a guilty plea, at a minimum the court must ensure that
the defendant is made fully aware of those consequences that are “direct” or
“penal.” State v. Howard,
110 N.J. 113, 122 (1988). The requirement that the
court be satisfied in that respect serves several salutary ends. It avoids having
a defendant enter into a plea hampered by being “misinformed . . .
as to a material element of a plea negotiation, which [he] has relied
[on] in entering his plea.” State v. Nichols,
71 N.J. 358, 361 (1976).
As a collateral matter, the entire criminal justice system’s interest in finality is
advanced. Clarity as to the direct and penal consequences of a defendant’s guilty
plea promotes the binding resolution of charges because it serves to ensure that
a defendant’s “expectations [are] reasonably grounded in the terms of the plea bargain.”
State v. Marzolf,
79 N.J. 167, 183 (1979).
In respect of the public interest in final and binding proceedings, the Court
Rules permit a court to vacate a guilty plea after sentencing only if
withdrawal of the plea is necessary to correct a “manifest injustice.” R. 3:21-1.
That discretionary determination necessitates a weighing of “‘the policy considerations which favor the
finality of judicial procedures against those which dictate that no man be deprived
of his liberty except upon conviction after a fair trial or after the
entry of a plea of guilty under circumstances showing that it was made
truthfully, voluntarily and understandably.’” State v. McQuaid,
147 N.J. 464, 487 (1997) (quoting
State v. Herman,
47 N.J. 73, 76-77 (1966)). Thus, if a defendant wishes
to withdraw a guilty plea after sentencing has occurred, “the court weighs more
heavily the State’s interest in finality and applies a more stringent standard” than
that which is applied to a withdrawal application made before sentencing has occurred.
Ibid.
III.
A.
We turn now to whether there has been a manifest injustice entitling defendant
to corrective relief under Rule 3:21-1. Defendant claims that his lack of knowledge
about NERA’s mandatory period of parole supervision requires that his plea be vacated.
Initially, we must determine whether NERA’s peculiar period of extended parole supervision should
be considered a direct, penal consequence of defendant’s plea.
The Legislature enacted NERA as a response to “New Jersey’s alarmingly high rate
of parolee recidivism.” State v. Thomas,
166 N.J. 560, 569 (2001). NERA purposefully
seeks “to ‘increase prison time for offenders committing the most serious crimes in
society.’” Ibid. (quoting Senate Law and Public Safety Committee, Statement to Senate Bill
No. 855 (Apr. 24, 1996)). To reduce recidivism, NERA increases the real time
period of incarceration of defendants who commit first- and second-degree “violent” crimes by
requiring that such defendants serve at least eighty-five percent of the sentence imposed.
N.J.S.A. 2C:43-7.2a. Moreover, NERA adds a mandatory period of post-release supervision:
Notwithstanding any other provision of law to the contrary and in addition to
any other sentence imposed, a court imposing a minimum period of parole ineligibility
of 85 percent of the sentence pursuant to this section shall also impose
a five-year term of parole supervision if the defendant is being sentenced for
a crime of the first degree, or a three-year term of parole supervision
if the defendant is being sentenced for a crime of the second degree.
The term of parole supervision shall commence upon the completion of the sentence
of incarceration imposed by the court pursuant to subsection a. of this section
. . . During the term of parole supervision the defendant shall remain
in release status in the community in the legal custody of the Commissioner
of the Department of Corrections and shall be supervised by the State Parole
Board as if on parole and shall be subject to the provisions and
conditions of [N.J.S.A. 30:4-123.51b].
[N.J.S.A. 2C:43-7.2c.]
The full effect of N.J.S.A. 2C:43-7.2c subjects a NERA defendant to greater restraints
after release from prison than otherwise would have applied to a non-NERA defendant.
A NERA defendant convicted of a first-degree crime, for example, is required to
serve a five-year period of supervised parole even if that period exceeds the
length of the full sentence imposed. And, should a NERA defendant violate parole
and be re-incarcerated, the result may be that he or she will serve
more than the original term of the sentence. On the other hand, a
non-NERA defendant could not be required to serve a period of parole that
exceeds the “term specified in the original sentence.” N.J.S.A. 30:4-123.65.
We have recognized that penal consequences attach to a loss of a parole
opportunity and, accordingly, have required trial courts to establish on the record that
a pleading defendant is aware of any such loss that is part of
the sentence to be imposed. State v. Kovack,
91 N.J. 476, 483 (1982).
As we explained in Kovack, the colloquy that took place between the sentencing
court and the defendant in that matter revealed that the defendant had no
contemplation that there would be any period of parole ineligibility to his sentence.
Id. at 480-81. Nonetheless, he was sentenced to a custodial term that included
a minimum period of parole ineligibility. Id. at 480. Because the imposition of
a period of parole ineligibility was “manifestly beyond” the defendant’s contemplation, id. at
483, we held that although a court need not explain to a defendant
what the parole opportunities are in general, in order to assure that a
defendant understands the consequences of a plea “the court must make certain that
[a] defendant has been made aware of any loss of parole opportunities that
may be a component of the sentence.” Ibid. The record in Kovack made
it “abundantly clear” that the defendant had no such understanding and, consequently, the
sentence was vacated. Id. at 484.
Thereafter, in Howard, supra, 110 N.J. at 118, we addressed a similar circumstance
that arose in the context of a sentence to the Adult Diagnostic and
Treatment Center (Avenel). The defendant in Howard pled guilty to second-degree sexual assault
with the understanding that the recommended sentence of seven years could carry a
parole ineligibility period of three and one-half years. Id. at 118-19. Immediately after
accepting the plea, the trial court raised the possibility of defendant being sentenced
to Avenel, and directed that defendant be evaluated. Id. at 119. As a
result thereof, the court sentenced defendant to seven years in Avenel. Ibid. Only
then was the defendant informed that the parole eligibility for an Avenel sentence
is indeterminate -- release may occur only when the State Parole Board is
satisfied that the “person is capable of making an acceptable social adjustment in
the community.” Id. at 119-20 (citing N.J.S.A. 2C:47-5).
Defendant appealed his sentence, and we reaffirmed the principle that a trial court
must ensure that a pleading defendant is aware of any loss of parole
opportunities that are part of a sentence. Id. at 123 (reaffirming Kovack requirement).
We noted that Avenel inmates are more likely than State Prison inmates to
serve the entire term to which they are sentenced, and that “both the
average and median lengths of stay for Avenel prisoners are significantly longer than
the stays of State Prison inmates.” Id. at 124. We concluded that “[t]he
trial court’s failure to inform a defendant of the possibility of confinement at
Avenel, [where one is] subject to a parole determination radically different from that
applicable to other prisoners, can result in manifest injustice.” Ibid.
Although not presenting a loss of a parole opportunity, the present appeal warrants
consideration of the harsh consequences imposed on a defendant by NERA’s mandatory period
of parole supervision. Under Kovack and Howard, a defendant must be informed of
such consequences. The NERA period of extended parole supervision is patently a direct
consequence of a defendant’s plea to a NERA-eligible offense. Moreover, the statute’s required
period of parole supervision has a penal impact.
Under NERA’s mandatory period of parole supervision, the fixed period of a defendant’s
supervision may extend beyond the term of the original sentence.
See footnote 2
Moreover, violation of
that parole supervision could subject defendant to additional incarceration for a length of
time that could make the custodial sentence, in the aggregate, far exceed the
original sentence imposed as part of the plea bargain. Thus, the period of
NERA parole supervision constitutes both a direct and penal consequence about which defendant,
in his plea colloquy and plea form, was not informed.
We note with approval the Appellate Division’s similar conclusion about the direct and
penal consequences of NERA’s mandatory period of parole supervision in State v. Freudenberger,
358 N.J. Super. 162, 167-70 (App. Div. 2003). The court emphasized the difference
between the NERA parole supervision provision and that which would be imposed for
a non-NERA offense.
For non-NERA offenses, when an inmate is released on parole, the length of
parole supervision extends to the point at which the sentence would expire. If
because of accumulation of credits the inmate “maxes out” before the conclusion of
the specified sentence, the inmate is released before the expiration of the sentence
without parole supervision. Of course, if the inmate serves the full sentence, release
is without parole supervision. With a NERA sentence, however, regardless of when the
inmate is released, he or she is subject to a fixed five-year term
of parole supervision for first-degree crimes and three years for second-degree crimes.
[Id. at 168-69.]
The court concluded that “[b]eing under parole supervision beyond the term of the
imposed sentence is itself a significant penal consequence. More significant is the possibility
that upon a parole violation a defendant could be required to serve additional
time after expiration of the specified sentence.” Id. at 169.
We hold that being subject to NERA’s mandatory period of parole supervision constituted
a direct, penal consequence of defendant’s plea to three counts of second-degree aggravated
assault. Furthermore, because defendant was not informed about the consequences of being subject
to NERA’s fixed period of parole supervision, we hold that he is entitled
to seek the vacation of his plea.
B.
A defendant seeking relief under Rule 3:21-1 also must show that the mistaken
belief about, or lack of knowledge of, a penal consequence of a plea
was material to the decision to plead guilty and prejudiced the defendant. In
Howard, we explained that to vacate a plea, a “defendant must show not
only that he was misinformed of the terms of the agreement or that
the sentence violated his reasonable expectations, but also that he is prejudiced by
enforcement of the agreement.” Supra, 110 N.J. at 123. “[T]he plea will not
be vacated if knowledge of the consequences would not have made any difference
in the defendant’s decision to plead.” Ibid. After determining that the defendant in
Howard should have been informed that a sentence to the Adult Diagnostic and
Treatment Center for sex offenders subjects the offender to a period of parole
eligibility “radically different” from that accorded State Prison inmates, we turned to the
question of materiality. Id. at 124-25. We noted that the defendant was not
advised of the possibility of a period of parole ineligibility in connection with
his sentence. Id. at 124. Moreover, we were satisfied that his guilty plea
was “obviously based on a careful calculation of the amount of time that
he would be imprisoned.” Ibid. Defendant’s “immediate protest” upon learning of the parole
ineligibility “besp[oke] the materiality of the omitted information to his decision to enter
the plea agreement.” Id. at 125 (emphasis added). In sum, the record fairly
broadcast the materiality of the omitted information and its importance in relation to
defendant’s decision to plead, and, with that showing, we allowed the vacation of
defendant’s plea. Id. at 125-26.
To the extent that it has been argued that Kovack dispensed with any
requirement that a defendant demonstrate a subjective materiality of the omitted information to
the decision to plead, we disagree with that interpretation of Kovack. In Kovack,
we considered a failure to provide any information about a period of parole
ineligibility that, realistically, would be imposed on the defendant. The Court’s focus was
on the impact of the period of parole ineligibility on a pleading defendant
who had no understanding or knowledge that such a period would apply. Our
plea-reopening post-sentencing cases since Kovack, beginning immediately thereafter with Howard, have all considered
the materiality of the omitted information to a defendant’s decision to plead.
See footnote 3
Its
importance is clear -- materiality has been treated as an essential factor in
the equation when a defendant seeks to set aside a plea after sentencing.
Two years after Howard, in State v. Kiett,
121 N.J. 483, 484 (1990),
we addressed a situation in which a defendant, under the misapprehension that the
death penalty was applicable to juveniles, pled guilty to murder pursuant to a
plea bargain that removed the risk of a death penalty. Notwithstanding that the
potential imposition of a death sentence was “clearly” a penal consequence about which
a defendant must be fully informed, id. at 489, we nonetheless tied the
misinformation about death eligibility to a requirement that “[the] misunderstanding [be] material to
the plea, [to determine whether] he or she cannot be deemed to have
entered a guilty plea with a full understanding of the penal consequences.” Ibid.
Howard, supra, 110 N.J. at 123, and State v. Taylor,
80 N.J. 353,
365 (1979), were cited for the proposition that a defendant “must show that
his mistaken belief about penal consequences was a material factor in the decision
to plead guilty.” Kiett, supra, 121 N.J. at 490.
Seven years after Kiett, we addressed the subject again. See McQuaid, supra, 147
N.J. at 495 (noting that defendant must show “that his mistaken belief about
the penal consequences to which he was exposed was a material factor in
his decision to plead guilty” (citing Kiett, supra, 121 N.J. at 489)). McQuaid
emphasizes the importance of the materiality requirement by stating that “[the] defendant must
show that he was prejudiced by enforcement of the plea agreement . .
. [T]he plea will not be vacated if knowledge of the consequences would
not have made any difference in the defendant’s decision to plead.” Id. at
495-96 (citing Howard, supra, 110 N.J. at 123). We concluded that the defendant
in McQuaid failed to demonstrate sufficient prejudice to allow him to withdraw his
guilty plea to felony murder. Id. at 498. Although the misinformation about whether
the charges rendered him death-eligible undoubtedly contributed to the defendant’s decision to plead
guilty to felony murder, we held that the defendant did not show that
sustaining the defendant’s guilty plea worked a manifest injustice. Id. at 498. Because
of the defendant’s sentencing exposure (his “base sentence of forty years could have
been increased to the equivalent of a life sentence with sixty years of
parole ineligibility,” id. at 497), we concluded that “the probability is overwhelming that
[the] defendant would have accepted the plea bargain without regard to his death
eligibility.” Id. at 498.
We reiterate today that defendant must demonstrate how the omission of information about
NERA materially affected his decision to plead guilty. To demonstrate a manifest injustice,
defendant must show that the lack of information prejudiced him in making his
decision to plead. From our perspective on appeal, we cannot tell whether knowledge
about imposition of NERA’s fixed term of parole would have made a difference
to defendant, such as we were able to discern in Howard. Defendant must
be allowed the opportunity to make that demonstration. Therefore, it is necessary to
remand this matter to the trial court to allow defendant a materiality hearing
on his application under Rule 3:21-1. If, on remand, the trial court determines
that the plea agreement must be rejected, the defendant will have three options.
Defendant may: (1) renegotiate the plea agreement, if the State is willing to
do so; (2) withdraw his guilty plea (subject to reinstatement of the dismissed
counts) and proceed to trial; or (3) withdraw the motion to be resentenced
and accept reimposition of the original sentence. Kovack, supra, 91 N.J. at 485.
` IV.
The judgment of the Appellate Division is reversed and the matter is remanded
to the Law Division for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in
JUSTICE LaVECCHIA’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-7 SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAA’WONE JOHNSON,
Defendant-Appellant.
DECIDED January 26, 2005
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
The State informed the Court at oral argument that after defendant entered
his plea, the standard plea form was revised to include a specific question
in respect of the applicability of the period of parole supervision required by
NERA.
Footnote: 2
Indeed, in defendant’s case it will extend beyond his original sentence. Defendant
is required to serve 12.75 years of his 15-year term of imprisonment before
he is eligible for parole. If defendant is paroled at the earliest opportunity,
the additional three years of parole supervision will result in a total aggregate
sentence (15.75 years) that exceeds his original sentence.
Footnote: 3
To the extent that the Appellate Division decision in Freudenberger, in permitting
the defendant to vacate his plea, omitted an examination of materiality, we disapprove
of its holding.