concurring in judgment.
The Appellate Division held that State v. Howard, 110 N.J. 113 (1988), “d[id] not represent a departure from existing law and [was] therefore not limited to prospective application.” State v. Lark, 229 N.J.Super. 586, 591 (1989). The court below recognized that in Howard, as well as in State v. Kovack, 91 N.J. 476 (1982), this Court “relied upon this State’s long-standing policy that a defendant must clearly understand the consequences of his plea.” Ibid. (citing Rule 3:9-2).
The Appellate Division was correct in those conclusions. Where it went astray was in its determination that because the principle that a defendant must understand the consequences of entering a guilty plea “did not receive judicial expression as applied to an Avenel sentence until Howard [,]*** it would not be reasonable to expect defendant to have raised the issue before now." 229 N.J.Super. at 592-93. Not only is that proposition incorrect, it renders the Appellate Division’s disposition internally inconsistent.
The court below erred in its holding that defendant could not have been expected to have raised the issue on direct appeal because, as its opinion observes, the Howard decision merely applied well-settled law to the facts of that case. The opinion *344below is internally inconsistent because if Howard did not break new ground — and it is obvious to all the members of this Court, see ante at 336, 337, to the Appellate Division, see 229 N.J.Super. at 591, and to defense counsel, as acknowledged at oral argument, that it did not — then it was available for argument on a direct appeal, which defendant never pursued. Having thus waived the question, defendant cannot raise it on post-conviction relief. R. 3:22-4.
As the Court accurately observes, ante at 336, the question of retroactivity never arises absent a new rule of law, which Howard surely did not presume to announce. At most Howard offered a sort of “bench manual” procedural guide for application of a hoary principle of law to a specific factual complex. We would be well advised to avoid any discussion of retroactivity in that circumstance.
In addressing the non-issue of retroactivity, the Court slices thin the already-complex principles of that difficult doctrine. In the process it wrings its hands, entirely unnecessarily, over the “effect of full retroactive application of Howard on the administration of justice,” ante at 340. The majority opinion raises the spectre of “several hundred petitions for post-conviction relief” were we to give Howard unlimited retroactive application. Ante at 341. Not to worry. If filed, those petitions would all be denied, for the same reason that Lark’s petition should be denied: because the Howard issue was not raised on direct appeal, it is forever foreclosed.
I join only in the judgment of reversal.
HANDLER, J., joins in this opinion.
CLIFFORD, J., concurring in judgment.
For reversal — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7.
Opposed —None.