STATE OF NEW JERSEY v. UPTON S. FINK

 

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3672-03T43672-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

UPTON S. FINK,

Defendant-Appellant.

_______________________________________________________________

 

Submitted November 16, 2005 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Acc. No. 02-02-0204.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Barbara A. Hedeen, Assistant Deputy

Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Christopher A. Alliegro, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Upton S. Fink appeals from an order dated January 21, 2004, denying his motion for reconsideration of sentence. We affirm.

On February 4, 2002, when he was fifty-three years old, defendant waived his right to indictment and pled guilty to committing a second-degree sexual assault on September 28, 2001, in violation of N.J.S.A. 2C:14-2b. The victim, S.G., was an eleven-year-old girl. In exchange for defendant's unconditional plea of guilty to second-degree sexual assault, the State agreed to recommend a sentence of six years in prison and to request the dismissal of case number 01-3377, charging defendant with first-degree aggravated sexual assault for performing cunnilingus on a six-year-old relative at the time of sentencing.

The plea papers signed by defendant indicate that he would be required to serve eighty-five percent of his sentence pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea hearing on February 4, 2002, defendant's attorney stated:

Yes, Judge. . . . I went over the plea recommendation with Mr. Fink. I did provide him with discovery, we went over that together. He understands the nature of the case against him; he understands the recommendation. He's willing to enter a plea of guilty. I believe that plea will be voluntary. He understands all the ramifications of the 85 percent law and the Megan's Law and the Avenel Diagnostic Evaluation.

After defendant was sworn, he was asked a series of questions by the court, which included the following:

Q. Please understand that I have not yet approved this plea agreement, but if I decide not to approve the plea agreement, if I think it's too lenient, I'll let your lawyer know in advance. I'll let the State's attorney know in advance and you'll be given an opportunity to withdraw your guilty plea. If that happens, nothing you say here today can be used against you. Do you understand that?

A. Yes.

Q. You must also understand, sir, that you have certain Constitutional rights that you're giving up by entering into this guilty plea. You have the right to plead not guilty. You can go to trial with a presumption of innocence, you can participate in jury selection, you can have witnesses presented on your behalf and State's witnesses cross-examined. You can testify or choose not to testify as the case may be. If you choose not to testify no one can comment about that and no one can draw any adverse inference from your non-testifying. Do you understand that?

A. Yes, sir.

Q. Those are certain of the Constitutional rights that you're giving up by entering into the guilty plea. Are you giving those rights up voluntarily?

A. Yes, I am.

Q. Is that what you want to do?

A. Yes.

Q. In addition to that, sir, because of this second degree offense, this crime, charges you with an act that is covered by the No Early Release Act. You're also entitled to have all of the facts and all of the allegations viewed by a jury as to whether or not this case fits within the scope of the No Early Release Act. Do you understand that?

A. Yes, sir.

Q. Has that aspect been explained to you?

A. Yes, sir.

Q. That means, sir, that a jury would separate and apart -- separate and distinct from its consideration on the underlying sexual assault charge, they would also consider whether or not the State has proven beyond a reasonable doubt that the facts as proven by the State, if any are proven, fit within the purview of the No Early Release Act. Do you understand that?

A. Yes, sir.

Q. That means that if you're convicted of No Early Release Act offense you would be eligible for and you would get an 85 percent sentence. You would have to serve 85 percent of whatever sentence the Court imposed on you. Do you understand that?

A. Yes, sir.

Q. Do you understand that by entering into this guilty plea you're giving up your right to have a jury consider whether or not the No Early Release Act applies to this case or not?

A. Yes.

Q. You're agreeing that the No Early Release Act would apply without a jury deliberating and considering any evidence that you might want to offer, if any, on your behalf?

A. Yes, I do.

Q. The No Early Release Act on this type of a sentence would require that you serve five years, one month and six days before you're eligible for parole. I'm going to repeat that. Five years, one month, six days before you can be considered for parole. Do you understand that?

A. Yes.

Q. And you understand you're giving up your right to contest that by pleading guilty?

A. Yes, sir.

. . . .

Q. If the plea agreement is accepted, you will get a six year jail sentence, 85 percent of which is to be served without parole. There are minimum mandatory fines of $50 violent crime penalty, $75 Safe Neighborhood penalty, $30 Law Enforcement Trust Fund Penalty. There is also, because this occurred after May 2001, an $800 assessment for the Special Sexual Assault Nursing fee. Do you understand that?

A. Yes.

Q. Do you have the ability to pay these fines?

A. Not at this time, no.

Q. You also understand, sir, that you're going to be required to submit to a psychological examination by the Department of Corrections? The purpose of which is to determine if your conduct in committing the offense was characterized by a pattern of repetitive and compulsive behavior and if it was, whether you are amenable to or will benefit from sex offender treatment and whether or not you're willing to participate in such treatment.

A. Yes.

Q. Do you understand that?

A. Yes, I do.

Q. Do you understand that one of the conditions of accepting this plea agreement is that you'll be directed to go to Avenel for an evaluation --

A. Yes, sir.

Q. -- and you're going to have to submit and cooperate.

A. Yes, I know that.

Q. Do you understand that if the examination reveals that your conduct is characterized by a pattern of repetitive or compulsive behavior and that you are amenable that you will, upon the recommendation of the Department of Corrections, be sentenced by me to Avenel for sex offender treatment. Do you understand that?

A. Yes, sir.

Q. Do you understand, sir, that you'll be allowed to challenge the findings of the Department of Corrections in a hearing and at that hearing you will have the right to confront witnesses against you and to cross-examine them and present evidence on your own behalf?

A. Yes.

Q. You'll also be allowed to do the same with respect to the hearing -- I'm sorry, with respect to the report prepared by the Avenel psychologist on you, you'll be able to challenge those with the assistance of your lawyer. Do you understand that also?

A. Yes.

Q. Do you understand that future paroles will not be guided by the normal parole guidelines?

A. Yes.

Q. That although you're eligible for parole five years, one month and six days after the imposition of a sentence that parole is not guaranteed at that point and again, future parole is not subject to the usual commutation, work credits, good time credits that you would get on another sentence. Do you understand that?

A. Yes, sir.

Q. You will be eligible for release from the State Parole Board after reviewing a recommendation from a special classification review board finds that you've achieved the satisfactory level of treatment and progress in sex offender treatment if you're sentenced to Avenel by me. Do you understand that?

A. Yes, sir.

Q. Do you, finally, understand that you could spend more time in treatment at Avenel under a custodial type environment than you would if you were sentenced to State Prison?

A. Yes, sir.

Q. Do you understand that if you were confined at Avenel, at the Adult Diagnostic and Treatment Center or any other facility for the commission of a sexually violent offense you may, upon completion of your term of confinement, be involuntarily committed to another facility if the Court finds, only after a hearing, that you are a sexually violent predator in need of involuntary civil commitment?

A. Yes.

After defendant provided a factual basis for the entry of his guilty plea, the court found that defendant had a sufficient opportunity to consult with his attorney, he understood the nature of the charges and penalties confronting him, as well as his constitutional rights, which he freely and voluntarily waived. Therefore, the court accepted defendant's voluntary, knowing and intelligent guilty plea.

At sentencing on May 10, 2002, defendant did not dispute the determination by the Adult Diagnostic Treatment Center (ADTC) that his conduct "was characterized by a pattern of repetitive, compulsive behavior," and that he was amenable to sex offender treatment. Defendant was sentenced, consistent with the plea agreement, to a six-year prison term to be served at the ADTC for sex offender treatment at Avenel. See N.J.S.A. 2C:47-3(b). And the State's application to dismiss case number 01-3377 was granted. Defendant was advised by the sentencing judge that "[t]he No Early Release Act applies to this. So, 85 percent of this sentence must be served before you're eligible for parole." Defendant was also told that he had forty-five days to appeal his sentence.

Defendant never filed a direct appeal, however, he filed a petition for post-conviction relief (PCR) claiming that NERA should not apply to his sentence. On January 9, 2004, defendant's attorney argued:

I think there is an argument that given all the restrictions that are involved with someone who is sentenced to Avenel that 85 percent was not intended to apply to that because, I mean, why go through all this -- the requirements of Special Classification Review Board and recommendation to a Parole Board if the person has to do 85 percent anyway?

The trial court noted that defendant had received the benefit of his negotiated plea agreement, and it rejected the argument that NERA should not apply to defendant's sentence:

It's clear that the Legislature intended that the 85 percent portion of the No Early Release Act apply to an offense of this nature. I find no inconsistency in the Legislature intending to and expressly setting forth the floor, a minimum amount of time to be served by a person convicted of this offense and that the maximum period of time be set by the other classification rules that -- that may apply to people who are similarly situated as Mr. Fink. There is no incongruity there and, frankly, the -- the sentence being as it is, less than the presumptive sentence, but within 85 percent requirement of the statute is one that is eminently reasonable.

The other arguments raised by Mr. Fink . . . are without any basis whatsoever. . . . Court Rule 3:22-2 sets forth four grounds. None of those grounds apply here. There hasn't been any substantial denial of defendant's rights under any Constitutional provision of the United States or the State of New Jersey.

On appeal, defendant makes the following arguments:

POINT I

BECAUSE THE "NO EARLY RELEASE ACT," N.J.S.A. 2C:43-7.2, WHICH WAS ENACTED TO PUNISH THE MOST VIOLENT OFFENDERS IN NEW JERSEY, NOW APPLIES TO THE DEFENDANT, WHO TOUCHED AN 11-YEAR-OLD CHILD'S VAGINAL AREA (N.J.S.A. 2C:14-2b), BUT DOES NOT APPLY TO MORE EGREGIOUS OFFENDERS SUCH AS AN ADULT WHO HAS SEXUAL INTERCOURSE WITH A 13-YEAR-OLD CHILD (N.J.S.A. 2C:14-3c(4)), OR A PARENT WHO HAS SEXUAL INTERCOURSE WITH HIS OR HER 16-YEAR-OLD CHILD (N.J.S.A. 2C:14-3c(3)(a)), THE STATUTE IS INTERNALLY IRRATIONAL AND THEREFORE VIOLATED BOTH THE DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION AND THE FUNDAMENTAL FAIRNESS DOCTRINE OF NEW JERSEY COMMON LAW. U.S. CONST. AMEND XIV; N.J. CONST. ART. I, 1.

POINT II

THE APPLICATION OF THE NO EARLY RELEASE ACT TO DEFENDANT'S CONVICTION FOR SEXUAL ASSAULT OFFENDS DUE PROCESS. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, 1.

Having carefully reviewed the record in light of these contentions and the applicable law, we find no basis to vacate or modify defendant's sentence. We are satisfied that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). After acknowledging the applicability of NERA as part of his plea agreement and receiving the full benefit of the negotiated plea at sentencing, defendant now seeks to assert a claim that could have been raised on direct appeal. See R. 3:22-4. Moreover, as noted by the trial court, defendant has failed to demonstrate that NERA is repugnant to the Constitution.

 
Affirmed.

(continued)

(continued)

11

A-3672-03T4

RECORD IMPOUNDED

December 7, 2005