- NERA Guilty Plea
Defendant can waive right to jury determination of the
NERA fact and submit issue to trial court for a NERA
determination which the State must prove beyond a
reasonable doubt. Such waiver must be acknowledged on
the record and found by the judge to have been knowingly
and voluntarily entered. State v. Shoats, N.J. Super. ,
S.O. at 16-17, 2001 WL 267054 (App. Div. 2001).
Where both prosecutor and defendant assumed that
NERA applied to defendant’s account of the offense, and
Appellate Division found otherwise, remedy was remand
to trial court. State v. Shoats, N.J. Super. , S.O. at 16,
2001 WL 267054. The following options are available on
remand:
(1) State and defendant may agree to jury
determination on the NERA issue;
(2) Defendant can waive right to jury determination of
the NERA fact and, with agreement of the prosecutor,
submit the issue to the judge for a NERA determination
with the State’s burden being beyond a reasonable doubt;
(3) If jury determination on NERA is not agreed to by
both the prosecutor and defendant, and defendant does not
expressly waive right to jury trial on NERA issue, then
defendant is not entitled to the benefit of the remainder of
the plea bargain.
In such cases, the prosecutor can:(a) reinstate all the original charges, or(b) renegotiate another plea bargain, or(c) accept defendant’s factual version and seek
resentencing without the NERA parole ineligibility term
but also without the agreed-to limit on the base term. State
v. Shoats, N.J. Super. at , S.O. at 16, 2001 WL
267054.
Where defendant acknowledges NERA’s application
and the basis therefor at the time of the guilty plea, a NERA
hearing may not be necessary at sentencing. State v. Meyer,
327 N.J. Super. 50 (App. Div.), certif. denied 164 N.J. 191
(2000); State v. Staten, 327 N.J. Super. 349, 358 n. 2 (App.
Div.), certif. denied 164 N.J. 561 (2000).
Guilty plea includes a waiver of jury trial as to guilt of
offense. There is no constitutional impediment to waiver
of defendant’s right to a jury determination as to NERA
sentencing enhancement fact. But there must be an express
waiver which is knowingly and voluntarily entered. State v.
Shoats, __ N.J. Super. __, S.O. at 15-16, 2001 WL 267054
(App. Div. 2001).When a defendant is indicted for a NERA eligible
offense and facts underlying guilty plea acknowledged
existence of NERA predicate facts, the fact that plea
agreement is to lesser offense does not preclude a NERA
sentence. State v. Reardon, 337 N.J.Super. 324, 766 (App.
Div. 2001). Where defendant, who was indicted for first
degree robbery, admitted in his factual basis his use of knife
in committing the crime, plea agreement to second degree
robbery did not preclude NERA sentence. State v. Reardon,
supra.Defendant cannot obtain the benefit of a negotiated
downgraded sentence premised on the application of
NERA and then repudiate the NERA sentence. State v.
Hernandez, __ N.J. Super. at __, S.O. at 5-6, 2001 WL- Where application of NERA has been
acknowledged at the time of a negotiated plea, the
defendant must first make an application in the trial court
to vacate the plea. In this way, the record will be clear that
he understands that a successful attack on the sentence
means that all charges may be resurrected. State v.
Hernandez, N.J. Super. at , S.O. at 7, 2001 WL
Defendant who acknowledged the application of
NERA at the time of plea is not precluded from arguing
that the factual basis for his plea is insufficient to permit a
NERA sentence. State v. Shoats, __ N.J. Super. __, S.O. at
14, 2001 WL 267054 (App. Div. 2001); State v.
Hernandez, __ N.J. Super. at __, S.O. at 7, 2001 WL
262636.Defendant cannot, on appeal, concede the validity of
the guilty plea which was necessarily predicated upon the
conclusion that the victim suffered serious bodily injury,
yet, at the same time argue that for purposes of NERA the
victim did not sustain serious bodily injury. State v. Staten,
327 N.J. Super. 349, 359 (App. Div.), certif. denied 164
N.J. 561 (2000). Defendant’s remedy is to move to
withdraw his guilty plea, and if granted, dismissed charges
will be reinstated. State v. Shoats, __ N.J. Super. __, S.O. at
16, 2001 WL 267054 (App. Div. 2001); State v.
Hernandez, __ N.J.Super. __, S.O. at 7, 2001 WL 262636;
State v. Staten, 327 N.J. Super. at 359-360.