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State v. Barr

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Feb 25, 2015
DOCKET NO. A-4790-12T4 (App. Div. Feb. 25, 2015)

Opinion

DOCKET NO. A-4790-12T4

02-25-2015

STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH A. BARR, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10-02-0076. Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM

Defendant, Kenneth Barr, appeals from the March 18, 2013 order denying his petition for post-conviction relief (PCR). Having considered defendant's arguments in light of the record and controlling law, we affirm.

On October 3, 2008, defendant paid and assisted a friend to shoot defendant's girlfriend. On December 23, 2010, defendant entered a guilty plea before the Honorable Timothy G. Farrell, J.S.C. Defendant pled guilty to first degree murder in violation of N.J.S.A. 2C:11-3a(1) in exchange for a sentence of forty years with an eighty-five percent parole disqualifier, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). A notice of appeal was filed on September 14, 2011. An order dismissing appeal was filed on December 7, 2011. A pro se petition for PCR was filed on January 18, 2012.

Defendant and his trial counsel testified at the PCR hearing. Defendant testified that he did not know there would be a mandatory five-year period of parole supervision and that he would not have taken a plea with that requirement. Defendant's trial counsel testified to meeting with defendant forty to sixty times over two years. Counsel testified he discussed the five-year parole supervision with defendant and defendant understood what it meant. While the plea form package mistakenly did not provide the five-year parole supervision, Judge Farrell held the following in his written decision:

It is unfortunate that neither [defendant's trial counsel], the assistant prosecutor nor I recognized that the plea form package did not provide for the five-year parole supervision required by NERA at the time of the original plea or sentence. That
sentence was illegal because NERA required a five-year period of parole supervision. The parole "tail" was a penal consequence. The question becomes: Did defendant mistakenly believe there would be no mandatory period of parole supervision? I find that the credible evidence establishes that defendant was aware of the requirement and expected it to be included in his plea. His testimony that he would have never taken this plea with the parole supervision is just not credible, particularly when he was facing a possibility of a life sentence.

The judge reached the same conclusion after reviewing the four-factor balancing test for withdrawing a guilty plea provided in State v. Slater, 198 N.J. 145, 157-58 (2009). The court denied defendant's PCR petition.

"Before accepting a guilty plea, a trial judge must ensure that the defendant enters the plea voluntarily and with a correct understanding of its penal consequences." State v. Freudenberger, 358 N.J. Super. 162, 167 (App. Div. 2003) (citation omitted). "Being 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. Therefore, "[a] defendant pleading guilty to a NERA offense must be informed of these potential consequences — 'the worst to expect' — to render the plea knowing and voluntary." Id. at 170. Thus, if a court finds that the defendant did not know of the mandatory period of parole supervision, the defendant is entitled to withdraw his or her guilty plea. Ibid.

However, "[i]f it is determined that defendant knew before h[is] plea of the NERA parole supervision provision, understood it, and pled guilty, the failure of the trial judge to inform [the defendant] of it would not be prejudicial to defendant and would not justify withdrawal of [the defendant's] plea." Ibid. (citation omitted). Thus, as is evident from our decision in Freudenberger, a judge's failure to inform a defendant during the guilty plea colloquy of the mandatory parole supervision required by NERA will not entitle a defendant to vacate his guilty plea, so long as the defendant was aware of that requirement from other sources, such as from trial counsel or from his own experience with a previous NERA sentence.

In State v. Johnson, 182 N.J. 232, 240-41 (2005), the Supreme Court expressly approved our conclusion in Freudenberger that NERA's mandatory period of parole supervision "constituted a direct, penal consequence" about which a defendant must be informed at the time he enters his guilty plea. The Court emphasized, however, that even if a defendant is able to demonstrate that he was unaware of the mandatory parole supervision period, that fact, standing alone, is not sufficient to entitle the defendant to vacate his guilty plea. Id. at 241. 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.'" Id. at 241-42 (quoting State v. Howard, 110 N.J. 113, 123 (1988)). In particular, a defendant must demonstrate that had he known of the omitted information, he would not have pled guilty. Id. at 242.

The record demonstrates that after considering the testimony of both trial counsel and defendant, Judge Farrell properly concluded that before defendant entered his guilty plea he was aware of both the requirement that he serve eighty-five percent of the sentence without parole, and he was aware that he was subject to a mandatory five-year period of parole supervision at the conclusion of his incarceration. The judge's conclusion was based upon the assessment of the credibility of the witnesses, and is amply supported by the record from the hearing. It is therefore entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999) (holding that when a trial judge's findings of fact are supported by sufficient, credible evidence in the record, they are binding upon a reviewing court).

There is no evidence, other than defendant's bald assertion, that the NERA parole supervision had any bearing on his decision to accept the plea. Defendant has not demonstrated, as required from the relief he seeks, that but for counsel's alleged failure to advise him of the parole supervision, he "would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Barr

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Feb 25, 2015
DOCKET NO. A-4790-12T4 (App. Div. Feb. 25, 2015)
Case details for

State v. Barr

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH A. BARR…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Feb 25, 2015

Citations

DOCKET NO. A-4790-12T4 (App. Div. Feb. 25, 2015)

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