                                  RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE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-4737-15T1

STATE OF NEW JERSEY
IN THE INTEREST OF
M.D., a juvenile.


                Argued April 11, 2018 – Decided September 28, 2018

                Before Judges Alvarez, Nugent, and Currier.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Family Part, Passaic County,
                Docket No. FJ-16-1234-14.

                Brian P. Keenan, Assistant Deputy Public Defender,
                argued the cause for appellant M.D. (Joseph E.
                Krakora, Public Defender, attorney; Brian P. Keenan,
                of counsel and on the brief).

                Robert J. Wisse, Assistant Prosecutor, argued the cause
                for respondent State of New Jersey (Camelia M.
                Valdes, Passaic County Prosecutor, attorney; Robert J.
                Wisse, of counsel and on the brief).

                Natalie J. Kraner argued the cause for amicus curiae
                American Civil Liberties Union of New Jersey
                (American Civil Liberties Union of New Jersey
                Foundation, Lowenstein Sandler LLP, and Criminal &
                Youth Justice Clinic Rutgers, attorneys; Rebecca
                Livengood, Edward L. Barocas, Jeanne LoCicero, Scott
             B. McBride, Natalie J. Kraner, and Laura Cohen, on the
             brief).

PER CURIAM

      Effective September 1, 2018, an amendment to Rule 5:21A supplemented

and relaxed the use of a Confidential Juvenile Plea Form (CN11144), to require

it "in all juvenile delinquency cases in which the judge accepts a plea." 1 This

appeal will hopefully be the last taken by a juvenile who entered a plea of guilty

without being advised regarding the actual length of his term of commitment,

the equivalent of adult incarceration, that might result. That consequence in this

case is, at least in part, attributable to the lack of a written plea form.

      M.D., a juvenile, appeals the denial of his motion to withdraw his guilty

plea. He was committed by the State Parole Board (Board), pursuant to N.J.S.A.

2A:4A-44(d)(5), to a term equal to one-third of the years of confinement to the

State Home for Boys imposed when he was sentenced. It is undisputed that

when he entered the guilty plea years earlier, neither he nor his attorney knew

about the existence of the statute authorizing this significant penal consequence

for a violation of parole conditions. The judge did not review that potential with


1
  Notice to the Bar: Order – Relaxation of Rule 5:21A to Make Use of Juvenile
Plea Form Mandatory in All Juvenile Delinquency Cases (July 17, 2018),
available at https://www.njcourts.gov/notices/2018/n180731a.pdf?cacheID=
veVuUFF.
                                                                              A-4737-15T1
                                          2
him at any time. M.D. has completed service of his sentence. We nonetheless

address one of the issues he raises because it is of significant public

consequence, is "capable of repetition," and may nonetheless evade review. See

State v. Gartland, 149 N.J. 456, 464 (1997); N.J. Div. of Youth & Family Servs.

v. J.B., 120 N.J. 112, 118-19 (1990).

                                        I.

      M.D.'s prior juvenile history is relevant. His record in particular mandated

that M.D. be advised of all pertinent sentencing consequences before pleading

guilty since he was likely to violate conditions of parole. M.D., who was born

in January 1997, was first placed on probation for simple assault, N.J.S.A.

2C:12-1(a)(1), on January 31, 2013, when he was sixteen years old. Thereafter,

on November 7, 2013, M.D. appeared in court on charges of violating his

probation as well as conspiracy to possess heroin, N.J.S.A. 2C:5-2. He was

again placed on probation for eighteen months with conditions. On March 21,

2014, when he was seventeen years old, M.D. was charged with violating his

probation for failure to adhere to conditions, and on April 14 of that year, he

was also charged with second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a)(1), and second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b).


                                                                         A-4737-15T1
                                        3
      M.D. entered guilty pleas to the probation violation and unlawful

possession of a weapon charge. In accord with the plea agreement explained to

him on the record, albeit not reduced to writing, he was to be sentenced to

concurrent terms of twenty-four months at the State Home for Boys.

      During the May 29, 2014 disposition hearing, the judge reviewed M.D.'s

juvenile history, which included contacts with law enforcement as early as 2009

when he was twelve years old, and his multiple violations of probation. The

order of disposition stated that "a term of post-incarceration supervision [PIS]

equivalent to one-third of the term of incarceration" in accord with N.J.S.A.

2A:4A-44(d)(5) was also imposed.

      During the proceeding, however, just as when the juvenile pled guilty, no

one mentioned the following statute:

            Every disposition that includes a term of incarceration
            shall include a term of [PIS] equivalent to one-third of
            the term of incarceration imposed. During the term of
            [PIS] the juvenile shall remain in the community and in
            the legal custody of the Juvenile Justice Commission
            . . . in accordance with the rules of the parole board,
            unless the appropriate parole board panel determines
            that [PIS] should be revoked and the juvenile returned
            to custody . . . . The term of [PIS] shall commence upon
            release from incarceration or parole, whichever is later.
            A term of [PIS] imposed pursuant to this paragraph may
            be terminated by the appropriate parole board panel if
            the juvenile has made a satisfactory adjustment in the


                                                                        A-4737-15T1
                                       4
            community while on parole or under such supervision
            ....

            [N.J.S.A. 2A:4A-44(d)(5).]

      Due to institutional disciplinary infractions committed while serving his

sentence, M.D. was required to complete the entire twenty-four months of

commitment. He was released on November 11, 2015, and began his statutory

eight-month PIS term, subject to conditions of parole. Within days, he was

charged with violating parole conditions.

      A warrant issued for M.D.'s arrest. A revocation hearing followed once

M.D. was taken into custody on December 22, 2015. A hearing officer found

he violated his conditions by failing to attend or participate in any treatment

programs, and was "a risk of flight and would likely avoid supervision again if

released." Accordingly, the hearing officer returned M.D. to custody for the

remainder of the PIS period.      A Parole Board juvenile panel adopted the

decision, concluding the State had proven by clear and convincing evidence that

M.D. violated the PIS conditions.

      M.D. filed a motion for reconsideration of the hearing officer's disposition

in the Family Part. He contended that he was being held unlawfully pas t the

court-ordered permissible term since he had completed his twenty-four-month

sentence. The judge who heard the matter directed the Attorney General's Office

                                                                         A-4737-15T1
                                        5
to appear, as they had not participated to that point, and, pending the next court

date, she ordered M.D.'s release.

      At the subsequent hearing, M.D.'s counsel argued that the family court

had jurisdiction to modify M.D.'s disposition. Counsel also argued that because

M.D. was unaware of the PIS aspect of his sentence, his plea was neither

knowing nor intelligent, and that he should therefore be granted leave to

withdraw it.

      The Attorney General responded that the court lost jurisdiction over the

juvenile once M.D. completed his twenty-four-month sentence and was paroled.

Only the Parole Board juvenile panel could revoke his PIS, and that decision

was appealable only to the full board, and thereafter only to the Appellate

Division. The Family Part judge agreed she had no jurisdiction over the matter,

vacated her prior order, and ordered M.D. returned to the custody of the Juvenile

Justice Commission. She scheduled a later motion date for argument on M.D.'s

application to withdraw his plea.

      The motion to withdraw the guilty plea was heard by a different judge on

May 23, 2016. M.D.'s attorney acknowledged he did not know about the PIS

consequence when he represented M.D., nor did he advise the juvenile about it.

The judge nonetheless denied the application based on M.D.'s failure to meet


                                                                         A-4737-15T1
                                        6
the four-prong test for the withdrawal of guilty pleas enunciated in State v.

Slater, 198 N.J. 145, 157-58 (2009), and the fact that PIS was mandatory. He

ordered M.D. back to the State Home for Boys to serve the remainder of his

eight-month post-incarceration term pursuant to the statute. This increased

M.D.'s commitment from the twenty-four months called for by the plea, about

which he was informed, to thirty-two months, about which he had been told

nothing.

     M.D. now raises two points on appeal:

           POINT I
           THE MOTION JUDGE ERRED IN DENYING M.D.'S
           MOTION TO WITHDRAW HIS PLEA WHERE
           THERE WAS NO WRITTEN PLEA AGREEMENT
           AND HE WAS NOT PREVIOUSLY INFORMED
           ABOUT    THE  [PIS] PORTION    OF   HIS
           DISPOSITION.

           POINT II
           THE MOTION JUDGE ERRED IN DETERMINING
           THAT SHE LACKED JURISDICTION TO ALTER
           M.D.'S DISPOSITION WHILE HE WAS STILL
           SERVING THE [PIS] PORTION OF HIS
           DISPOSITION.




                                                                     A-4737-15T1
                                     7
      The American Civil Liberties Union of New Jersey (ACLU) has filed an

amicus curiae brief setting forth the following arguments:

            I.     THIS COURT SHOULD NOT DISMISS THIS
                   APPEAL AS MOOT, BUT SHOULD ADDRESS
                   THE MERITS OF THIS CASE BECAUSE THE
                   ISSUES BEFORE THE COURT ARE OF
                   GREAT PUBLIC IMPORTANCE AND ARE
                   CAPABLE    OF   REPETITION   WHILE
                   EVADING REVIEW.

            II.    THE CURRENT PRACTICE OF PLACING
                   YOUNG PEOPLE IN HALFWAY HOUSES
                   RATHER THAN RELEASING THEM TO THE
                   COMMUNITY       WHEN        THEIR
                   INCARCERATORY TERMS ARE OVER
                   VIOLATES DUE PROCESS AND THE
                   JUVENILE CODE.

                   A.   Requiring Individuals to Enter Halfway
                        Houses as a Condition of Release Violates
                        the Statutory Requirements and Goals of
                        the Juvenile Code.

                   B.   Requiring Individuals to Enter Halfway
                        Houses as a Condition of [PIS] Violates
                        Due Process.

            III.   A   MANDATORY    TERM    OF   POST-
                   INCARCERATION SUPERVISION VIOLATES
                   THE   PRINCIPLE   THAT     JUVENILE
                   SENTENCING REQUIRES INDIVIDUAL
                   REVIEW AND DEPRIVES THE JUVENILE OF
                   DUE PROCESS AND FUNDAMENTAL
                   FAIRNESS.



                                                                    A-4737-15T1
                                       8
                   A.    Under Miller v. Alabama and Traditional
                         Due Process Principles, Individualized
                         Consideration Is Constitutionally Required
                         for Assigning a Period of [PIS] to Juveniles
                         During Sentencing.

                   B.    The Automatic Imposition of             [PIS]
                         Offends Fundamental Fairness.

            IV.    THE      FAMILY    PART    RETAINS
                   JURISDICTION OVER A JUVENILE'S
                   SENTENCE DURING THE PERIOD OF [PIS]
                   IMPOSED     PURSUANT    TO  N.J.S.A.
                   § 2A:4A-45.

      We address the ACLU's Points I and IV only. Amici curiae cannot

independently raise issues not argued by the parties in the case. State v. J.R.,

227 N.J. 393, 421 (2017) (citation omitted).

                                        II.

      Courts allow the withdrawal of a guilty plea after sentencing to correct a

"manifest injustice." R. 3:21-1.2 A judge's exercise of discretion in deciding

such motions is ordinarily governed by the four-factor test enunciated in Slater,


2
   Rule 5:1-1 states: "[j]uvenile delinquency actions shall be governed by the
rules in Part III insofar as applicable and except as otherwise provided by the
rules in Part V." This includes Rule 3:9-2 and relevant case law. See e.g. State
in the Interest of J.R., 244 N.J. Super. 630, 638 (App. Div. 1990) (procedural
requirements for an adult guilty plea apply to guilty pleas in the juvenile court.);
State in the Interest of G.W., 206 N.J. Super. 50, 54 (App. Div. 1985) (Rule
3:9-2 permits a judge to reject a guilty plea by an adult, thus the same discretion
is vested in a juvenile court judge.).
                                                                           A-4737-15T1
                                         9
198 N.J. at 157-58: "(1) whether the defendant has asserted a colorable claim

of innocence; (2) the nature and strength of defendant's reasons for withdrawal;

(3) the existence of a plea bargain; and (4) whether withdrawal would result in

unfair prejudice to the State or unfair advantage to the accused."

      But a judge presented with a plea must first elicit testimony demonstrating

that it is "supported by a factual basis and . . . entered voluntarily and knowingly,

that is, with a full understanding of the charge and the consequences of the plea."

Id. at 154-55. Unless the requirements of Rule 3:9-2 are met, a plea should be

rejected. This includes reviewing the consequences with a defendant to ensure

a complete understanding of the penal consequences. Ibid.

      For this reason, the Slater analysis is not reached where the factual basis

for the plea is inadequate. See State v. Tate, 220 N.J. 393, 404-05 (2015).

      In a case decided a few months after Slater, in the context of post-

conviction relief, the Supreme Court held ineffective assistance of counsel is

established when a defendant is misadvised regarding the immigration

consequences of a guilty plea. Where a defendant "would not have pled guilty

but for the inaccurate information from counsel . . ." the Court allowed the

withdrawal and reinstated the matter for trial. State v. Nunez-Valdez, 200 N.J.

129, 143 (2009).


                                                                            A-4737-15T1
                                        10
       A juvenile, like an adult, is entitled to be advised and to understand any

"direct" or "penal" consequences flowing from a guilty plea. State ex rel.

B.P.C., 421 N.J. Super. 329, 354 (App. Div. 2011) (citing State v. Johnson, 182

N.J. 232, 236 (2005)). In B.P.C., the issue was whether two juveniles were

entitled to notification that their guilty pleas would subject them to Megan's Law

registration requirements. See N.J.S.A. 2C:7-2(b)(2). Id. at 335-36. Because

neither had been advised regarding Megan's Law, one juvenile's matter was

remanded for the judge to conduct a post-conviction relief hearing regarding

ineffective assistance of counsel. The other juvenile's matter was remanded to

afford him the opportunity, assuming he could establish the omission was

material to his decision to plead guilty, to withdraw his guilty plea. Id. at 337,

356.

       Hence the judge in this case should not have automatically applied the

Slater factors to M.D.'s motion. M.D. was not informed of a very significant

penal consequence.       His plea was therefore not knowing, as Rule 3:9-2

mandates.     The judge should have given the juvenile the opportunity to

demonstrate the undisputed omission had a material effect on his decision to

plead. After all, in this case, the effect of the statute was to increase his potential




                                                                              A-4737-15T1
                                         11
time of commitment by one-third. That would seem, on its face, to at least

suggest the omission was material.

      Further, the judge who mistakenly denied M.D.'s motion to withdraw his

plea because of M.D.'s failure to satisfy the Slater analysis, also mistakenly held

that because PIS is mandatory, M.D. need not have been advised about it before

waiving his right to a trial. Rule 3:9-2, however, requires that a court establish

the knowing and voluntary nature of a plea before it is accepted, regardless of

whether the significant consequences are mandatory or not. See Tate, 220 N.J.

at 397. It is self-evident that a waiver is knowing only if made on complete

information, anchored in a full understanding of the significant consequences.

Whether the consequences are mandatory is irrelevant—they must be made

known.

      Unfortunately for M.D., he has long since completed his sentence, and our

decision does not affect him. In the hopes of clarifying that the requirements of

Rule 3:9-2 act as the foundation for application of the Slater factors, we have

addressed this point on appeal. M.D. should have been afforded the opportunity

to demonstrate the omission was material to his decision and prejudiced him.

Johnson, 182 N.J. at 237-44. Once having made the requisite showing, he should

have been afforded the opportunity to (1) negotiate the plea agreement; (2)


                                                                          A-4737-15T1
                                       12
withdraw his guilty plea and try the matter; or (3) withdraw the motion and

accept the original sentence. See B.P.C., 421 N.J. Super. at 356.

      In his second point, M.D. contends that the judge who denied his

application to modify the Parole Board's disposition erred. The ACLU joins in

seeking clarification on the issue.    We discuss it very briefly, as it lacks

substantial merit. See R. 2:11-3(e)(2).

      The proper procedure, once M.D. was resentenced by the Parole Board

juvenile panel, was for him to file an administrative appeal to the full board,

pursuant to N.J.A.C. 10A:71-4.1(e). Had M.D. disagreed with the full board's

decision, a final agency decision, a notice of appeal to the Appellate Division

would have been the next step pursuant to Rule 2:2-3(a)(2). State parole board

decisions are reviewable only by a direct appeal to our court. State, Parole Board

v. McNair, 131 N.J. Super. 522, 526 (App. Div. 1974).

      We do not dispute that N.J.S.A. 2A:4A-45(a) provides continuing

jurisdiction by the Family Part over a sentenced juvenile. That provision does

not apply to a parole board decision, however, but to juveniles who are civilly

committed, and to the family court's use of county juvenile detention facilities.

      Dismissed as moot.




                                                                         A-4737-15T1
                                       13
