State v. Lark

• Decision Date: 12 January 1989
• Citation: 229 N.J.Super. 586,552 A.2d 229
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Waverly LARK, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 586

229 N.J.Super. 586

552 A.2d 229

STATE of New Jersey, Plaintiff-Respondent, v. Waverly LARK, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 7, 1988.

Decided Jan. 12, 1989.

Alfred A. Slocum, Public Defender, for defendant-appellant (Roxanne J. Gregory, Asst. Deputy Public Defender, of counsel and on the brief).

Cary Edwards, Atty. Gen., for plaintiff-respondent (J. Grall Robinson, Deputy Atty. Gen., of counsel and on the letter brief).

Before Judges KING, BRODY and ASHBEY.

The opinion of the court was delivered by

BRODY, J.A.D.

Pursuant to an amended plea agreement, defendant was convicted in 1985 of two first-degree aggravated sexual assaults committed during the commission of separate burglaries, N.J.S.A. 2C:14-2a(3). A staff psychologist at the Adult Diagnostic and Treatment Center (ADTC or Avenel) having concluded that defendant's assaultive sexual conduct was repetitive and compulsive, the trial judge imposed a ten-year prison term for one of the assaults, two years to be served before parole eligibility, followed by a ten-year term for the other assault to be served at Avenel. The judge also assessed a penalty in the amount of $1,000 for each conviction. He dismissed numerous other charges as required by the agreement. Defendant did not appeal.

Two years later, defendant filed a petition for post-conviction relief. R. 3:22-1. He claimed that his attorney in these matters had not provided him effective legal assistance in several respects unrelated to the manner in which his plea had been taken. He also contended that his sentence was illegal because it did not conform to the terms of the plea agreement. The trial judge denied the petition.

In this appeal from that denial, defendant has abandoned the arguments he raised in the trial court and now makes the following arguments:

I. THE TRIAL COURT'S CONDUCT IN AMENDING THE PLEA AGREEMENT AT THE TIME OF SENTENCING AND ITS FAILURE TO EXPLAIN TO THE DEFENDANT HE HAD THE RIGHT TO WITHDRAW HIS

PLEA, VIOLATED BOTH RULE 3:9-2 and RULE 3:9-3(a) AND RENDERED DEFENDANT'S PLEA INVOLUNTARY.

II. THE DEFENDANT'S SENTENCE VIOLATED THE ORIGINAL PLEA AGREEMENT BY EXPOSING HIM TO A POSSIBLE PERIOD OF CONFINEMENT LONGER THAN THAT CONTEMPLATED UNDER ITS TERMS.

III. THE COURT'S FAILURE TO ADVISE DEFENDANT OF THE PAROLE IMPLICATIONS OF AN AVENEL SENTENCE REQUIRES THAT DEFENDANT'S CASE BE REMANDED. (Not Raised Below.)

IV. IMPOSITION OF A TOTAL VIOLENT CRIMES COMPENSATION BOARD PENALTY OF $2,000.00 WAS AN INTEGRAL AND MATERIAL PART OF DEFENDANT'S SENTENCE AND EXCEEDED DEFENDANT'S REASONABLE EXPECTATIONS. (Not Raised Below.)

V. THE TRIAL COURT FAILED TO PROPERLY WEIGH AGGRAVATING AND MITIGATING FACTORS AND ITS IMPOSITION OF CONSECUTIVE SENTENCES WITH A MANDATORY MINIMUM WAS INCONSISTENT WITH THE IMPOSITION OF MINIMUM TERMS.

Although defendant designates only points III and IV as not having been raised below, as we read the record he raised none of his present arguments in the trial court.

An appellate court will not consider an issue, including a constitutional issue, that the parties neither raised nor argued below "unless it goes to the question of jurisdiction or presents a matter of real public importance." Deerfield Estates, Inc. v. Tp. of East Brunswick, 60 N.J. 115, 120, 286 A.2d 498 (1972). We will consider only point III because it requires us to determine matters of public importance: whether the holding in State v. Howard, 110 N.J. 113, 539 A.2d 1203 (1988), is to be applied retroactively and if so, whether its application may be raised in a petition for post-conviction relief. See State v. Kovack, 91 N.J. 476, 486, 453 A.2d 521 (1982).

The original plea agreement provided for alternative sentences depending upon whether Avenel determined that defendant's conduct was repetitive and compulsive. In the event of such a determination, the aggregate custodial sentence could not exceed 20 years at Avenel. In the absence of such a determination, the aggregate prison sentence could not exceed 20 years with a parole ineligibility period of not more than four years. After reading the presentence report the trial judge rejected the agreement because he believed that defendant deserved the punishment of a prison term as well as treatment at Avenel. The parties then renegotiated the agreement to permit the judge to impose the sentence defendant received, ten years imprisonment with a parole ineligibility period of two years followed by ten years at Avenel with no parole ineligibility period.

Defendant now contends that the trial court erred in failing to advise him that he would not be eligible for parole from Avenel until "after recommendation by a special classification review board" that he "is capable of making an acceptable social adjustment in the community." N.J.S.A. 2C:47-5. Current statistics demonstrate that Avenel inmates are likely to serve more time than prison inmates given the same sentence. Howard, 110 N.J. at 124, 539 A.2d 1203. Although he did not raise the issue below, defendant included in a list of grievances against his original trial attorney that he had erroneously advised him that Avenel provided "a fourteen (14) month program, and this is what I understood my sentence to be."

The Howard Court decided the issue as follows:

In the future, trial courts should satisfy themselves that the defendant understands the possibility of the imposition of an Avenel sentence and the effect that such a sentence will have on the defendant's parole eligibility. In addition to stating the minimum and maximum terms of the offense, the court should advise the defendant of the standard for parole eligibility with an ADTC sentence. [Howard, 110 N.J. at 125, 539 A.2d 1203.]

It is clear from this record that the trial judge did not "advise the defendant of the standard for parole eligibility with an ADTC sentence."

The first question we must decide is whether Howard is to be applied retroactively. A similar question was posed in Kovack, which held that a trial judge must advise a defendant pleading guilty of any likely period of parole ineligibility that the court may include in the sentence. The court there ruled that its holding would not be only prospective because the holding did not depart from existing law, but was simply an expression of this State's consistent, long-standing policy "that its courts afford meticulous protection to a defendant who elects to plead guilty." Kovack, 91 N.J. at 487, 453 A.2d 521. Because courts were first given authority to impose a period of parole ineligibility in the Code of Criminal Justice, the court applied its holding "to all pleas entered since the effective date of the Code, September 1, 1979."

The Howard Court arrived at its holding by following the Kovack analysis. Howard, 110 N.J. at 123-125, 539 A.2d 1203. However, unlike the Kovack Court, the Howard Court did not discuss the retroactive effect of its holding. We do not consider significant in that regard the phrase "In the future ..." with which it introduced its holding. The language employed directs that in the future judges must inform defendants...