Super. 56 (App. Div.), certif. denied, 146 N.J. 569
(1996).
In Hill v. Lockhart, 474 U.S. 52 (1985), the Court
held that where a defendant enters a guilty plea upon
counsel’s advice, the voluntariness of the plea depends on
whether the advice was within the range of competence
demanded of attorneys in criminal cases, and the two-
prong Strickland test for evaluating such claims applies.
To satisfy the second, or “prejudice” requirement,
defendant must show that there is s reasonable
probability that he or she would not have pled guilty but
for counsel’s error. Where defendant fails to allege in the
petition that he or she would not have pled if correctly
informed of a parole eligibility date, the allegations are
insufficient to satisfy the prejudice requirement and
defendant was not entitled to an evidentiary hearing or
habeas relief. Id. at 56-59.
Retraction may be permitted, however, if defendant
has been erroneously advised regarding the elements of
the offense, State v. McQuaid, 147 N.J. at 489; State v.
Rhein, 117 N.J. Super. 112 (App. Div. 1971), or the
maximum exposure is misrepresented by defense
counsel, the prosecutor and the trial court, State v. Kiett,
121 N.J. at 488-90; State v. Nichols, 71 N.J. 358 (1976);
State v. Lightfoot, 208 N.J. Super. 475 (App. Div. 1986),
or there has been a misunderstanding regarding the
sentence to be recommended by the prosecutor, State v.
Brown, 71 N.J. 578 (1976). In State v. DiFrisco, 137 N.J.
434 (1994), cert. denied, 516 U.S. 1129 (1996),
defendant was not permitted to withdraw his guilty plea
to a capital offense based on the fact that he had entered
the plea based on counsel’s advice that by doing so, he
would avoid the death penalty.
Generally, it is advisable for defendant to be apprised
of the maximum sentence he or she may receive. State v.
Smith, 109 N.J. Super. 9 (App. Div.), certif. denied, 56
N.J. 473 (1970). With respect to indeterminate terms,
plea bargains should include a specific proviso if the
statutory five year maximum is to be increased. State v.
Jackson, 138 N.J. Super. 431 (App. Div. 1976).
The mental illness of a defendant precludes the
taking of a guilty plea only if the mental condition
renders defendant unable to comprehend his or her
situation and to intelligently consult with counsel. State
v. Norton, 167 N.J. Super. 229 (App. Div. 1979).
A defendant cannot voluntarily plead guilty when
unrepresented and he or she has not waived the right to
counsel. State v. Melendez, 165 N.J. Super. 182 (App.
Div. 1979). A voluntary and intelligent plea of guilty
made by an accused who has been advised by competent
counsel, though, may not be collaterally attacked. Mabry
v. Johnson, 467 U.S. 504 (1984).In State v. Howard, 110 N.J. 113 (1988), it was held
that the trial court must inform sex offenders of the
possibility and parole consequences of a sentence to the
Adult Diagnostic Treatment Center before accepting a
guilty plea pursuant to a plea agreement. The Howard R.
is not retroactive. State v. D.D.M., 140 N.J. at 100. A
statute requiring registration and community notifica-
tion of convicted sex offenders does not impose additional
punishment; since registration and community
notification only amount to collateral consequences of a
guilty plea, the statute does not invalidate or violate plea
agreements. Doe v. Poritz, 142 N.J. 1 (1994).Before accepting a plea of guilty to a Graves Act
offense, the trial court must inform defendant of the
mandatory parole ineligibility term prescribed by the
Act. The plea may not be vacated despite the court’s
omission, however, if defendant is nonetheless aware of
the consequences of his or her plea. State v. Bailey, 226
N.J. Super. 559 (App. Div. 1988). A defendant must be
informed of any period of parole ineligibility that is likely
to be imposed when a court accepts a guilty plea subject
to the No Early Release Act. State v. Burford, 163 N.J. 16
(2000); State v. Meyer, 327 N.J. Super. 50 (App. Div.),
certif. denied, 164 N.J. 191 (2000).In State v. Garland, 226 N.J. Super. 356 (App. Div.),
certif. denied, 114 N.J. 288 (1988), the Appellate
Division held that a trial court has no obligation under
Kovack or Howard, to inform a defendant pleading guilty
to a crime, committed while he or she was on probation,
that conviction for this crime may subject them to
probation revocation and imposition of consecutive
sentences upon violation of probation.In State v. Cartier, 210 N.J. Super. 379 (App. Div.
1986), the court held that a trial judge must be assured
that a defendant is aware of the increased number of years
to which he or she may be sentenced pursuant to the
Code’s extended term provisions before the guilty plea
may be accepted. Therefore, where the prosecutor
reserves the right to move for an extended term, it
becomes the responsibility of the trial judge at the time
of the plea to assure that defendant is aware of the
sentencing consequences under N.J.S.A. 2C:43-7. See
State v. Kovack, 91 N.J. at 481.When defendant’s mental state is pivotal to the
question of whether the crime amounts to a capital