STATE OF NEW JERSEY v. ERIC WIGGINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3039-04T43413-03T4

A-3039-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC WIGGINS,

Defendant-Appellant.

 

Submitted February 28, 2006 - Decided March 30, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 02-08-1757 and 02-09-1887-B.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Linda K. Danielson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Eric Wiggins appeals from his conviction and sentence following his guilty plea to certain of the charges contained in two separate indictments and from an additional conviction and sentence imposed on him for contempt. We affirm in part, reverse in part, and remand.

The following facts are relevant to the issues raised on appeal. Defendant was charged in Indictment 02-08-1757 with first-degree aggravated sexual assault against R.D., N.J.S.A. 2C:14-2a; second-degree sexual assault against R.D., N.J.S.A. 2C:14-2c; third-degree criminal restraint against R.D., N.J.S.A. 2C:13-2; third-degree terroristic threats against J.D. and/or R.D., N.J.S.A. 2C:12-3a; and third-degree sexual penetration by a diseased person against R.D., N.J.S.A. 2C:34-5b. All of these charges arose from an incident on May 30, 2002 involving defendant and R.D., with whom defendant had a prior consensual sexual relationship.

Defendant was charged in Indictment 02-09-1887-B with a single count of third-degree sexual penetration by a diseased person against K.W., N.J.S.A. 2C:34-5b. That charge arose from an incident on January 10, 2002 during which K.W. engaged in consensual sexual intercourse with defendant without knowing that he was HIV positive.

While the charges represented by these two indictments were pending, R.D. secured a restraining order against defendant. On February 27, 2003, defendant was arrested and charged with fourth-degree contempt of the restraining order and simple assault. Although R.D. voluntarily dismissed the restraining order in April 2003, the charges that arose from defendant's violation of that order were not resolved.

On June 2, 2003, defendant entered a guilty plea pursuant to a plea agreement. The terms of the agreement were embodied in a standard series of plea forms, all completed in defendant's own hand. According to the agreement, defendant would plead guilty to the charge of second-degree assault against R.D., which was included in Indictment 02-08-1757, and to the charge of third-degree sexual penetration by a diseased person against K.W., which was the sole count in Indictment 02-09-1887-B. In exchange, all of the other counts in the first indictment as well as the charges arising from the February 2003 incident would be dismissed. In addition, the prosecutor agreed to recommend a sentence of six years in prison with an 85% parole disqualifier for the second-degree offense and a concurrent term of five years on the third-degree offense.

On June 2, 2003, defendant appeared and entered his guilty plea in accordance with this agreement. As a part of that proceeding, he testified under oath that on May 30, 2002, he forced R.D. against her will to have sexual intercourse involving acts of penetration with him. In addition, he testified under oath that on January 10, 2002, he engaged in sexual intercourse with K.W. without telling her that he was suffering from HIV, a sexually transmitted disease. As a part of the plea colloquy, defendant acknowledged that he was aware of his rights, that he understood the terms of the sentence that the prosecutor was recommending, that he had signed and understood each of the plea forms and that he was aware of all of the penal consequences of the plea.

On October 24, 2003, when defendant appeared for sentencing in accordance with the plea agreement, counsel advised the judge that defendant wanted to withdraw his plea. Defendant told the judge that he had not understood the meaning of the period of parole disqualification, was not familiar with the terms relating to post-incarceration parole, and did not know anything about Megan's Law and its requirements. After additional colloquy, the judge denied the application and proceeded with the sentencing. In the moments that followed, defendant became uncooperative and uttered a number of profanities that the judge heard. As a result, in addition to imposing the sentence included in the negotiated plea, the judge also found defendant guilty of contempt and sentenced him to a term of six months to be served in the county jail consecutive to his prison sentence for the underlying offenses.

Defendant filed separate appeals addressing the two indictments. Because the issues raised in the appeals appear to be the same, we have consolidated them for purposes of addressing the issues in this single opinion.

Defendant raises the following arguments for our consideration on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEAS BEFORE SENTENCING.

POINT II

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE TRIAL COUNSEL FAILED TO ADVISE DEFENDANT FULLY OF THE CONSEQUENCES AND MEANING OF THE PURPORTED PLEA AGREEMENTS, RESULTING IN THE ABSENCE OF KNOWING, INTELLIGENT, AND VOLUNTARY PLEAS (Partially Raised Below).

POINT III

DEFENDANT SUFFERED A BRADY VIOLATION AND VIOLATIONS OF THE RULES OF COURT REGARDING DISCOVERY FROM THE ALLEGED VICTIM, R.D. (Not Raised Below).

POINT IV

THE TRIAL COURT ERRED IN ENTERING AN ORDER OF CONTEMPT AGAINST DEFENDANT.

POINT V

THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL COURT PURSUANT TO STATE v. NATALE.

POINT VI

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

We have considered each of these issues and have concluded that, with the exception of the arguments raised in Points IV and V, none of them warrants relief. We nevertheless address each of them briefly before turning to the questions raised in Points IV and V.

We find no merit in defendant's argument that he should have been permitted to withdraw his guilty plea prior to sentencing. The record is clear that, before entering his guilty plea, defendant executed several forms specifically designed to ensure that he understood all of the relevant aspects of the plea. Included among those forms are a general form setting forth the charges, the terms of the agreement and the prosecutor's recommendation as to sentence. In addition, included among the forms are specific and detailed additional questions relating to Megan's Law offenses, sexual offenses, the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and terms relevant to sexual offenses committed on or after December 1, 1998. We have described these forms as "crucial" to any defendant's understanding of a plea. State v. Williams, 342 N.J. Super. 83, 91 (App. Div.), certif. denied, 170 N.J. 207 (2001); see State v. Warren, 115 N.J. 433, 444 (1989).

The forms are all completed in defendant's own hand and each and every question is answered, evidencing that he understood all of the questions. See State v. Freudenberger, 358 N.J. Super. 162, 166-67 (App. Div. 2003). In addition, during the colloquy in open court prior to accepting defendant's plea, the judge engaged in thorough questioning of defendant to ensure that he understood all of his rights and that he understood the terms of the plea agreement and the specifics of the sentence the prosecutor agreed to recommend. See R. 3:9-2. In particular, the judge made certain that defendant understood all of the questions on the forms and the implications of those questions. In light of this record, defendant's effort to withdraw his plea, which was based solely on his asserted lack of understanding of some of the matters included in the plea forms and discussed when he entered his guilty plea, is meritless.

Nor do we find merit in defendant's argument, raised for the first time on appeal, that there was an inadequate factual basis for his plea. This argument, directed solely to the second-degree sexual assault count as against R.D., is deficient for several reasons. First, defendant's sworn testimony during the plea colloquy consisted of facts that demonstrate each of the required statutory elements for the offense. N.J.S.A. 2C:14-2c. Second, we have previously held that an attack on the factual sufficiency of any plea must be coupled with an effort to withdraw the entire plea and proceed to trial. See State v. Mitchell, 374 N.J. Super. 172, 175-76 (App. Div. 2005). We understand this to require that, where a negotiated plea encompasses more than one indictment, defendant may not attack the factual basis for one part of the plea without attempting to withdraw the entirety of the plea. Defendant's effort to undermine the factual basis for his plea only in part cannot succeed.

Third, defendant's attack on his plea rests in part on a document that he asserts was written by R.D., one of his victims. In his view, this letter demonstrates that he is innocent of the second-degree sexual assault charge, thus undercutting the factual basis for his plea. Moreover, he argues that the prosecutor's awareness of this document and failure to disclose it prior to his plea violated his constitutional rights. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963).

We find no merit in either of these assertions. The document, a handwritten letter, has never been authenticated or shown to have been authored by R.D. It makes a number of requests and observations, but it does not include any language that might be considered to be exculpatory. Even if it were a document that should have been provided to defendant prior to his plea, the entry of a voluntary guilty plea "represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973); State v. Knight, 183 N.J. 449, 470-71 (2005); State v. Crawley, 149 N.J. 310, 316 (1997). Defendant's guilty plea therefore operates as a waiver of his assertions that he was deprived of any constitutional right.

We also reject defendant's ineffective assistance of counsel argument. Although he asserts that the record before us on appeal demonstrates that his counsel failed to explain the plea forms adequately and failed to advise him of the consequences of his guilty plea, we disagree. There is nothing in this record that demonstrates that counsel was deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There is nothing in the record that supports the conclusion that defendant would have proceeded to trial in place of accepting the plea had counsel acted otherwise. See State v. Lasane, 371 N.J. Super. 151, 157 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).

Turning to defendant's attack on his sentence, although we do not find merit in defendant's argument that any aspect of his sentence is excessive, see State v. Roach, 146 N.J. 208, 232-33, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996), we note that the State concedes that defendant is entitled to a remand for the purpose of reconsideration of the sentence imposed on him for the third-degree offense pursuant to the dictates of our Supreme Court. See State v. Natale, 184 N.J. 458, 495 (2005)(remand guidelines are applicable to "both jury trial and guilty plea cases.").

Finally, defendant argues that the judge erred in finding him guilty of contempt of court during the sentencing hearing and in sentencing him to an additional consecutive six-month jail term as a consequence. We decline to set out at length the precise verbal exchange that took place between defendant and the judge following the judge's rejection of defendant's effort to withdraw his guilty plea and that formed the basis for the finding of contempt. Rather, we conclude that we must reverse the contempt order and that aspect of defendant's sentence for two reasons.

First, the judge did not "afford[] the alleged contemnor an immediate opportunity to respond," R. 1:10-1(e), as is required. That is, although the judge ordered defendant to "stand there or you're going to get cited for contempt" and asked defendant if he "want[ed] to get cited for contempt," neither of those statements actually offered defendant an opportunity to be heard or to respond. See Amoresano v. Laufgas, 171 N.J. 532, 553-54 (2002); In re Daniels, 118 N.J. 51, 62, cert. denied, 498 U.S. 961, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990).

Second, the order does not recite the specific facts that the judge concluded demonstrated contempt. See State v. Quintana, 270 N.J. Super. 676, 682 (App. Div. 1994). Rather, the judge referred to one of the words defendant had uttered and he commented that defendant was "blurting out" during the proceedings which the judge found was sufficient to demonstrate contempt. The record reflects that the words defendant used were rude and inappropriate, but there is evidence suggesting that defendant's words may have been more in the nature of comments muttered to himself rather than statements directed to the judge in an effort to obstruct the proceeding as the rule requires. R. 1:10-1(a); see Amoresano, supra, 171 N.J. at 555; In re Adler, 153 N.J. Super. 496, 501 (App. Div. 1977).

We therefore reverse the order of contempt and vacate the six-month consecutive jail sentence imposed on defendant for contempt. We remand for reconsideration only of the sentence imposed for the third-degree offense pursuant to the dictates of Natale, supra. In all other respects, the conviction and sentence are affirmed.

Affirmed in part, reversed in part, and remanded.

 

(continued)

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12

A-3413-03T4

RECORD IMPOUNDED

March 30, 2006