STATE OF NEW JERSEY v. KAAWONE JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5849-05T45849-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAAWONE JOHNSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 3, 2007 - Decided

Before Judges Weissbard and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-10-0093.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the letter brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kaawone Johnson appeals from a February 3, 2006 order denying his motion to withdraw from his plea agreement, and vacate his conviction. We affirm.

I.

An Essex County grand jury returned an indictment in January 1998 charging defendant with one count of first-degree attempted murder, three counts of second-degree aggravated assault, one count of third-degree unlawful possession of a weapon, and one count of second-degree possession of a weapon for an unlawful purpose. On December 11, 1998, pursuant to a negotiated plea agreement, defendant pled guilty to the three counts of aggravated assault and the single count of possession of a weapon for an unlawful purpose. In exchange for his plea of guilty, the State dismissed the attempted murder and unlawful possession of a weapon counts. The plea agreement provided that defendant's aggregate sentence would not exceed fifteen years, subject to the eighty-five percent NERA parole ineligibility term. See N.J.S.A. 2C:43-7.2. At the time defendant entered his guilty plea, he was not told that NERA required that he would be subject to three years of parole supervision upon his release from prison.

Pursuant to the plea agreement, defendant was sentenced on January 29, 1999, to an aggregate prison term of fifteen years, eighty-five percent without parole. Specifically, the sentence consisted of three consecutive five-year terms of imprisonment for the three aggravated charges, eighty-five percent to be served without parole, and a concurrent five-year term of imprisonment, three years without parole, for possession of a weapon for an unlawful purpose. On each of the three aggravated assault convictions, the sentencing judge imposed a three-year period of parole supervision upon release, as required by N.J.S.A. 2C:43-7.2, even though that requirement had not been explained to defendant when he entered his guilty plea.

On January 8, 2004, we affirmed defendant's sentence. Five months later, on June 17, 2004, the Court granted defendant's petition for certification, and remanded the matter to the trial court to conduct a "materiality" hearing to determine whether the omission of the NERA parole supervision information from the plea colloquy materially affected defendant's decision to plead guilty. See State v. Johnson, 182 N.J. 232, 244 (2005). The Court held that in order for defendant to prevail on remand, he must show that he would not have pled guilty had he known of the required three-year period of parole supervision. Ibid.

On remand, Judge Lester, who was not the sentencing judge, conducted a thorough hearing in which defendant's testimony alone covers more than thirty transcript pages. Judge Lester provided detailed reasons explaining her conclusion that defendant's contentions were not credible, and that he would have pled guilty even if he had known a three-year period of parole supervision would be imposed. We affirm substantially for the reasons explained by Judge Lester in her comprehensive and well-reasoned oral opinion of December 2, 2005. Defendant's arguments to the contrary lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

The January 29, 1999 judgment of conviction did not specify whether the periods of parole supervision were concurrent or consecutive to each other.

Judge Lester also prepared an amended judgment of conviction in which she specified that the three-year terms of parole supervision are to run concurrently.

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A-5849-05T4

December 17, 2007