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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Appellant, v. TASHAWN HOLMES, Defendant–Respondent.

DOCKET NO. A–3217–12T2

    Decided: March 26, 2014

Before Judges Grall and Nugent.Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Leonardo V. Rinaldi, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

The State appeals an amended judgment of conviction entered on remand from this court.   We “remanded for resentencing to ‘address the imposition of consecutive sentences.’ ”   At the resentencing hearing on remand, the State argued that it should be permitted to vacate the guilty plea if the court intended to impose concurrent sentences.   The State now challenges the judge's rejection of that claim.   For the reasons that follow, we affirm.

The grand jurors for Essex County charged defendant Tashawn Holmes with murder, N.J.S.A. 2C:11–3a(1)–(2), two counts of possessing a weapon for an unlawful purpose, N.J.S.A. 23:39–5, that referenced different firearms — one a handgun;  unlawful possession of a handgun, N.J.S.A. 2C:39–5b;  and causing a risk of widespread injury or damage, N.J.S.A. 2C:17–2c.   During jury selection, however, the State offered defendant a favorable plea agreement.

Pursuant to that agreement, defendant pled guilty to two counts of the indictment and the remaining counts were dismissed.   The agreement, as put on the record by the prosecutor at the time of the plea, called for:  the State's amendment of the murder charge to aggravated manslaughter;  defendant's entry of a guilty plea to aggravated manslaughter and unlawful possession of a handgun;  the State's “recommendation” of a fifteen-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, for aggravated manslaughter;  and the State's “request” for a consecutive five-year term with three years of parole ineligibility for unlawful possession of the handgun.

At the time of defendant's guilty plea, the judge advised defendant of the maximum terms that could be imposed and that his attorney would argue for a lesser sentence on the day of sentencing.   Thereafter, defendant provided a factual basis for the plea that the judge found adequate.

The terms of the agreement the prosecutor set forth on the record and the judge's explanation of the agreement are consistent with the plea form signed by the prosecutor, defense counsel and defendant.   It reflected both the recommendations the State agreed to make and defense counsel's intention to argue “for minimum time to be served on Counts 1 and 4.”

In addition, paragraph twenty-three of the plea form advised that:  the judge was not bound by and could reject the plea;  defendant could take back his plea if the judge decided to impose a “more severe sentence”;  and nothing defendant said could be used against him if he took back his plea.   The paragraph of the plea form that must be checked if the judge has given a conditional indication of the sentence he would impose, independent of the prosecutor's recommendation, was not checked.

At sentencing, defense counsel, relying on State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014 (1986) argued, among other things, that defendant's sentences should be concurrent.   The prosecutor did not object to defense counsel's presentation of an argument in favor of concurrent sentences.   Instead, the State presented an argument for consecutive sentences.   After hearing argument, the judge sentenced defendant to a fourteen-year term of imprisonment for aggravated manslaughter, subject to NERA, and a consecutive five-year term with three years of parole ineligibility for unlawful possession of a handgun.   The judge did not address the Yarbough factors because he viewed consecutive sentences to be a component of the plea.   With respect to consecutive sentences, the judge noted that they were contemplated by both parties to the plea agreement.   For that reason and because the agreement was entered during jury selection, the judge deemed it appropriate to follow the agreement on consecutive sentences.

Defendant's direct appeal was argued before this court on a sentencing calendar pursuant to Rule 2:9–11.   As previously noted, we remanded for resentencing in light of Yarbough.

On remand, a judge other than the one who accepted defendant's plea and imposed the initial sentence was assigned.   Prior to the hearing on remand, that judge advised the parties that, having read the attorneys' written submissions, he was not inclined to conclude that consecutive sentences were justified but wanted to hear their arguments.   After extensive argument, the judge determined that consecutive sentences were inappropriate and, relying on State v. Warren, 115 N.J. 433 (1989), concluded that the State was not entitled to an order vacating defendant's guilty plea.

On appeal, the State argues:


“If plea bargaining is to fulfill its intended purpose, it must be conducted fairly on both sides and the results must not disappoint the reasonable expectations of either.”  State v. Thomas, 61 N.J. 314, 321 (1972).   Nevertheless, “the defendant's right to withdraw from a guilty plea if his or her sentencing expectations are disappointed does not create in the State a reciprocal right to repudiate the plea arrangement.”  Warren, supra, 115 N.J. at 444.

That is not to say that the State is restrained from enforcing a component of a sentence that is negotiated.   For example, this court has held that where a defendant accepted a guilty plea and acknowledged that he was subjected to a parole ineligibility term required by NERA, the defendant could not retain other significant benefits of the bargain, including a recommendation for a sentence at the low end of the range, and challenge the applicability of a period of NERA parole ineligibility on appeal.   See State v. Hernandez, 338 N.J.Super. 317, 322–23 (App.Div.2001).   Similarly, the State may condition a favorable plea agreement on the defendant's waiver of the right to appeal and enforce that condition by moving to annul the plea if defendant violates the agreement.   R. 3:9–3(d).

The difficulty for the State in this case is that the record does not support the State's claim that defendant knowingly and voluntarily entered an agreement that was conditioned on his accepting consecutive sentences for his two convictions.   The plea form expressly reserved defense counsel's ability to argue for a lower sentence on both convictions and did not suggest that defendant agreed to have his counsel forego argument for concurrent sentences.   Similarly, during the judge's colloquy with defendant at the time of the plea, the judge advised defendant that his attorney would argue for a lesser sentence, without in any way suggesting preclusion of argument for concurrent sentences.   Indeed, the prosecutor's failure to object when defense counsel argued for concurrent sentences suggests that the State did not understand such an argument to be in violation of the plea agreement.

For the sake of completeness, we further note that defendant had no notice that the State could or would seek to annul the agreement if defendant challenged the consecutive sentences on appeal.   There is no reference to waiver of the right to appeal on the plea form or on the record of the plea proceeding.

In sum, because of the terms of the plea agreement, the State's expectation that consecutive sentences would be imposed without regard to the Yarbough factors was unreasonable.   Accordingly, we reject the State's appeal and affirm the sentence imposed on remand.



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