STATE OF NEW JERSEY v. JEROD K. WISE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0426-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEROD K. WISE,
Defendant-Appellant.
_______________________________
Submitted December 4, 2017 – Decided March 15, 2018
Before Judges Messano and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 10-
05-1273.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Frank J.
Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel; Samantha Monteleone, on the brief).
Appellant filed a pro se supplement brief.
PER CURIAM
A jury convicted defendant Jerod K. Wise of first-degree
murder,
N.J.S.A. 2C:11-3(a)(1) and (2), and the judge sentenced
defendant to life imprisonment with a thirty-five year period of
parole ineligibility. We affirmed defendant's conviction on
direct appeal and remanded for resentencing because the period of
parole ineligibility did not comply with the requirements of the
No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. State v. Jerod
K. Wise, No. A-1672-11 (App. Div. Nov. 22, 2013) (slip op. at 3,
16-17). The Supreme Court denied defendant's petition for
certification.
218 N.J. 274 (2014). On resentencing, the judge
again imposed a life sentence, along with a period of parole
ineligibility of sixty-three years and nine months as required by
NERA.
Defendant filed a pro se petition for post-conviction relief
(PCR) alleging the ineffective assistance of counsel (IAC). He
specifically claimed trial counsel failed to assert
passion/provocation manslaughter as a defense, was ineffective
during plea negotiations and provided incorrect advice regarding
defendant's maximum sentence exposure.
After the court appointed PCR counsel, defendant filed a
supplemental certification in which he claimed trial counsel told
him the maximum sentence he could receive if convicted at trial
was life imprisonment with a thirty-year period of parole
2 A-0426-16T2
ineligibility. Defendant certified that had he known he could
receive the actual sentence imposed by the judge, i.e., life with
a period of parole ineligibility that exceeded sixty-three years,
he would have pled guilty rather than go to trial. PCR counsel
included a copy of the "Pretrial Memorandum," executed by trial
counsel, defendant and the prosecutor, which indicated the maximum
sentence defendant faced if convicted of murder was life
imprisonment with thirty years of parole ineligibility. The
memorandum also stated, however, that there was no plea offer by
the State.1
In an oral opinion, the PCR judge, who was also the trial
judge, addressed all of the issues defendant raised and denied the
petition. This appeal followed.
Defendant contends trial counsel rendered ineffective
assistance by misadvising him regarding the maximum sentence
exposure defendant faced if convicted at trial. As to this
particular IAC claim, the PCR judge found defendant failed to meet
1
Defendant's certification further stated that he rejected the
State's plea offer of eighteen years, subject to NERA, on the
advice of his attorney, and trial counsel never discussed with him
the possibility of passion/provocation manslaughter as a defense.
The PCR judge considered and rejected these arguments, and
defendant does not raise them on appeal.
3 A-0426-16T2
the Strickland/Fritz2 test. He noted that in addition to the
Pretrial Memorandum, which indicated there was no plea offer at
all, the transcript of a status conference before trial
corroborated the State had not extended a plea offer. The judge
stated: "In the absence of a plea offer, defendant's only options
were to plead to the indictment without any recommendation as to
the sentencing . . . [or] go to trial." The judge reasoned "[a]ny
misrepresentations . . . without a plea offer [were] of no
consequence since there is nothing to compare it with or for
petitioner to consider." In short, the judge concluded defendant
suffered no prejudice from trial counsel's error.
To establish an IAC claim, a defendant must satisfy the two-
prong test formulated in Strickland,
466 U.S. at 687, and adopted
by our Supreme Court in Fritz,
105 N.J. at 58. A defendant must
show "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment." Id. at 52 (quoting Strickland,
466 U.S. at 687).
Second, a defendant must prove he suffered prejudice due to
counsel's deficient performance. Strickland,
466 U.S. at 687. A
defendant must show by a "reasonable probability" that the
deficient performance affected the outcome. Fritz,
105 N.J. at
2
Strickland v. Washington,
466 U.S. 668 (1984); State v. Fritz,
105 N.J. 42 (1987).
4 A-0426-16T2
58. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." State v. Pierre,
223 N.J.
560, 583 (2015) (quoting Strickland,
466 U.S. at 694; Fritz,
105 N.J. at 52). "[A]n attorney's gross misadvice of sentencing
exposure that prevents defendant from making a fair evaluation of
a plea offer and induces him to reject a plea agreement he
otherwise would likely have accepted constitutes remediable
ineffective assistance." State v. Rountree,
388 N.J. Super. 190,
214 (App. Div. 2006) (quoting State v. Taccetta,
351 N.J. Super.
196, 200 (App. Div.), certif. denied,
174 N.J. 544 (2002)).
The PCR judge concluded that since there was no plea offer,
defendant could not have suffered any prejudice from defense
counsel's erroneous statement of the maximum period of parole
ineligibility. However, the transcript from the status conference
provides more detail as to why there was no plea offer from the
State.
Defendant faced life imprisonment if convicted of murder. It
is unclear whether the State actually made a plea offer, but
defense counsel told the judge at the status conference he
"countered" with an offer that defendant would plead guilty to
second-degree manslaughter and face a maximum sentence of six
years, subject to NERA. The judge pressed the prosecutor whether
the State would consider "aggravated manslaughter," but defense
5 A-0426-16T2
counsel acknowledged defendant would not "consider[] discussing"
a guilty plea to aggravated manslaughter.
The judge asked defendant if he wanted his attorney to
continue plea negotiations, and defendant said, "[h]e can discuss
further." There was a brief recess. When the proceedings resumed,
the judge spoke directly to defendant, who acknowledged he did not
want counsel to "continue plea discussions" and rather "wish[ed]
to get a trial date."
We evaluate this complete record, which defendant highlights
in his pro se supplemental brief, in light of the undisputed fact
that during these discussions, defense counsel labored under the
mistaken impression that the maximum period of parole
ineligibility was thirty years, as demonstrated by the Pretrial
Memorandum. We can reasonably presume, even in the absence of an
evidentiary hearing, that defense counsel conveyed that erroneous
information to defendant. But, we cannot presume, in the absence
of an evidentiary hearing, that defendant would have terminated
plea negotiations if he understood that he faced the potential for
more than sixty years of parole ineligibility if convicted at
trial. Without a more extensive record, the PCR judge's conclusion
that defendant suffered no prejudice because there was no plea
offer lacks sufficient support.
6 A-0426-16T2
However, regardless of what an evidentiary hearing regarding
the plea negotiations might reveal, we affirm the order denying
defendant's PCR petition for a different, purely legal reason.
See Do-Wop Corp. v. City of Rahway,
168 N.J. 191, 199 (2001) ("[I]t
is well-settled that appeals are taken from orders and judgments
and not from opinions, oral decisions . . . or reasons given for
the ultimate conclusion.").
Defendant gave a statement to police in which he asserted
self-defense, and reiterated this claim during his testimony at
trial. Wise, slip op. at 5. Defendant testified that he had
"swung" his knife in the victim's direction, attempting to scare
him, and did not realize "the knife connected with the guy at
all." Id. at 6. Trial counsel stressed self-defense in his
summation, and the judge charged the jury with that affirmative
defense. Id. at 7.
The Court has clearly stated that a defendant is not entitled
to PCR relief by claiming he would have pled guilty to a more
favorable plea offer, while at the same time maintaining his
innocence. State v. Taccetta,
200 N.J. 183, 186 (2009). In
Taccetta, the defendant was convicted of numerous crimes and
sentenced to life imprisonment, plus ten years, and a thirty-year
period of parole ineligibility. Id. at 185. On PCR, the judge
found the defendant would have accepted a more favorable plea
7 A-0426-16T2
offer but for the ineffective assistance of counsel, who
misinformed the defendant of his sentencing exposure if convicted.
Id. at 189-90. We affirmed the PCR court's grant of a new trial.
Id. at 186.
The Court, however, said that as a matter of law, the
"defendant could not have entered a plea of guilty" to the
purported more favorable plea offer. Id. at 194.
We reach that conclusion for the simple reason
that a defendant does not have the right to
commit perjury in giving a factual basis for
a crime that he insists he did not commit.
Therefore, even if defendant met the first
prong of the Strickland/Fritz standard -- that
his counsel was constitutionally ineffective
for giving him mistaken advice about the
sentencing consequences of proceeding to trial
-- defendant cannot satisfy the second prong
of that standard, which requires a showing of
prejudice.
[Id. at 194-95.]
"Our court rules and case law require a factual basis for a plea
of guilty, that is, a truthful account of what actually occurred
to justify the acceptance of a plea." Id. at 198.
As noted, here, defendant testified under oath that he acted
in self-defense. A defendant who asserts facts that imply he
acted in self-defense cannot provide an adequate factual basis for
a guilty plea to aggravated manslaughter, State v. Urbina,
221 N.J. 509, 528 (2015), much less an adequate factual basis for a
8 A-0426-16T2
guilty plea to murder. "A defendant may not plead guilty to an
offense while maintaining his innocence because [a] [c]ourt will
not sanction perjury as a permissible basis to resolve pending
criminal charges by way of a guilty plea." State v. Perez,
220 N.J. 423, 433 (2015) (citing Taccetta,
200 N.J. at 195-96).
Therefore, defendant could not have pled guilty to aggravated
manslaughter or murder because he necessarily would have had to
provide a factual basis inconsistent with his assertion of self-
defense. Counsel's ineffective assistance did not prejudice
defendant.
Affirmed.
9 A-0426-16T2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
