STATE OF NEW JERSEY IN THE INTEREST OF S.M. a minor

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4982-07T44982-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF S.M.,

a minor.

_________________________

 

Submitted December 16, 2008 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket Nos. FJ-21-521-01 and FJ-21-522-01.

Maynard, Truland & Ware, LLC, attorneys for appellant S.M. (Joe B. Truland, Jr., on the brief).

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent State of New Jersey (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant S.M. appeals from the June 9, 2008 order of the Family Part that denied his motion to withdraw his August 14, 2001 pleas of guilty to two acts of juvenile delinquency. We affirm in part; reverse in part; and remand to the trial court for further proceedings consistent with this opinion.

On August 14, 2001, appellant, then thirteen years of age, pled guilty, pursuant to a plea agreement, to offenses which, if committed by an adult, would constitute sexual assault, N.J.S.A. 2C:14-2c, and endangering the welfare of a child, N.J.S.A. 2C:24-4a. In exchange for defendant's pleas, the State dismissed two additional charges of sexual assault and two charges of criminal sexual contact. On disposition, the trial court placed appellant on probation for a period of three years and ordered him to comply with Megan's Law registration requirements. N.J.S.A. 2C:7-2 to -5.

On October 11, 2002, appellant pled guilty to unrelated offenses which, if committed by an adult, would constitute sexual assault, N.J.S.A. 2C:14-2c; attempted sexual assault, N.J.S.A. 2C:14-2c; endangering the welfare of a child, N.J.S.A. 2C:24-4a; aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; criminal sexual contact, N.J.S.A. 2C:14-3b; criminal trespass, N.J.S.A. 2C:18-3b; and violation of probation on the August 14, 2001 charges. On disposition, the court committed appellant to two years at the Pinelands Residential Community Home and placed him on probation for a term of three years.

On October 24, 2005, after release from the Pinelands Residential Community Home, appellant, then seventeen years of age, was adjudicated delinquent in Pennsylvania for an offense which, if committed by an adult, would constitute indecent assault. On disposition, the court committed appellant to the Northampton County Juvenile Justice Center Treatment Unit. On release, appellant was transferred to Warren County and adjudicated delinquent on September 26, 2006, on a violation of probation offense based on his juvenile adjudication in Pennsylvania. On the same day, the court revoked appellant's probation and committed him to the Juvenile Justice Center for a term of two years. As of that date, appellant had pled guilty to offenses which, if committed by an adult, would constitute seven sexual assaults on seven different victims.

On November 13, 2007, the trial court entered an order temporarily committing appellant to the Special Offenders Unit Annex, pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, pending a final hearing on the State's application for appellant's commitment under the SVPA.

On April 8, 2008, appellant filed a motion to withdraw his guilty pleas of August 14, 2001. On June 9, 2008, Judge John Coyle entered an order, supported by an oral decision, denying the motion.

On appeal, appellant raises the same arguments presented in the trial court.

POINT I.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-THE JUVENILE WAS NOT UNDER OATH PURSUANT TO [R.] 3:9-2.

POINT II.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-NO PARENT/GUARDIAN WAS PRESENT ON THE RECORD DURING THE ENTRY OF THE GUILTY PLEA AS REQUIRED BY [R.] 5:20-4.

POINT III.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-HE WAS NOT ADVISED OF HIS EXPOSURE TO THE SEXUALLY VIOLENT PREDATOR ACT (SVPA).

POINT IV.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-THE JUVENILE WAS NOT ADVISED ABOUT THE PENAL CONSEQUENCES OF MEGAN'S LAW.

POINT V.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-THERE WAS AN INSUFFICIENT FACTUAL BASIS TO SUPPORT THE PLEA.

POINT VI.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILT PLEA-A MOTION TO WITHDRAW A GUILTY PLEA MAY BE MADE TO CORRECT A MANIFEST INJUSTICE.

I.

Motions to withdraw guilty pleas are governed by Rule 3:21-1. Accordingly, "a plea may only be set aside in the exercise of the court's discretion," and if the motion is made after sentencing, the "defendant[] must show [his or her] conviction was manifestly unjust in appealing to the court's broad discretion." State v. Slater, 198 N.J. 145, 156 (2009). In meeting his or her burden, a "defendant[] must show more than a change of heart. A 'whimsical change of mind,' by the defendant or the prosecutor, is not an adequate basis to set aside a plea." Id. at 157 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). Simply stated, a defendant must "'present some plausible basis for his [or her] request, and his [or her] good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion.'" State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004) (quoting Huntley, supra, 129 N.J. Super. at 17). Additionally, "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Slater, supra, 198 N.J. at 160.

It is against this legal backdrop that we consider appellant's arguments. We conclude that appellant's arguments in Points I, II and III are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Appellant argues that he should have been permitted to have withdrawn his pleas because he was not placed under oath at the plea hearing, citing Rule 3:9-2. Not so. Defendant pled guilty in 2001. That part of the rule prohibiting a trial court from "accept[ing] such plea without first questioning the defendant personally, under oath or by affirmation" was only added to the rule by amendment of July 28, 2004, effective September 1, 2004. Criminal - Placing Defendants Under Oath for Plea Colloquy, Administrative Directive # 5-03 (July 17, 2003). Directive # 5-03, Criminal, Placing Defendants Under Oath for Plea Colloquy.

In Point II, appellant argues that he should have been permitted to have withdrawn his pleas because his mother's presence at the plea hearing was not acknowledged on the record, citing Rule 5:20-4. We conclude that the trial court's failure to note appellant's mother's presence at the plea hearing was harmless. The record discloses that appellant's mother was present in the courtroom and had conferred with appellant's counsel about his pleas. Although the record indicates that appellant's mother was seated near the back of the courtroom, we find no reasons to assume that appellant would have chosen to plead differently had his mother been sitting at the counsel table.

In Point III, appellant contends that the trial court improperly failed to apprise him of the collateral consequences of pleading guilty to a predicate offense under the SVPA. Appellant contends that the court erred in denying his motion to withdraw his guilty pleas in the interest of promoting fundamental fairness. The SVPA was enacted on August 12, 1998, effective August 12, 1999. Although the SVPA was effective prior to defendant's guilty pleas, the obligation to inform defendants of their exposure to the SVPA was not required until 2003. State v. Bellamy, 178 N.J. 127, 139 (2003). Because the Court established a new rule of law, it held that its decision would only be given limited pipeline retroactivity, applying "only to cases pending direct review at the time of the rule's announcement." Id. at 142-43.

The phrase "pending direct review" means "in any case still on direct appeal at the time [the] new rule is set forth." State v. Cummings, 184 N.J. 84, 99 (2005). Pipeline retroactivity, contrary to full retroactivity, does "not apply to those defendants who had exhausted all avenues of direct relief at the time [the decision] was decided." State v. Knight, 145 N.J. 233, 258 (1996); see also State v. Yanovsky, 340 N.J. Super. 1, 11 (App. Div. 2001). Here, the time for defendant's direct appeal had expired prior to the Bellamy decision.

II.

Appellant argues next that he should have been permitted to have withdrawn his pleas because the trial court failed to advise him of the penal consequences of pleading guilty to an offense subject to Megan's Law. Appellant contends that he was not informed that he would be subject to community supervision for life. Appellant asserts that the court, prosecutor and his attorney failed to inform him what tier classification he would be subject to. We reject these arguments.

Rule 3:9-2 governs the taking of pleas; in particular, it mandates that a court not accept a guilty plea to a criminal charge without first "determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2. "The specificity and rigor embodied in Rule 3:9-2 manifest a systemic awareness that a defendant waives significant constitutional rights when pleading guilty, which places an affirmative obligation on a court to reject a plea of guilty when that court is not independently satisfied that the Rule's prerequisites are met." State ex rel. T.M., 166 N.J. 319, 326 (2001).

In determining whether a defendant understands the consequences of his or her plea, "the court must ensure that defendant [has been] informed of the direct penal consequences of the plea, generally, those relating to sentencing." Pressler, Current N.J. Court Rules, comment 1.4.1 on R. 3:9-2 (2009). A trial court must inform a defendant of the maximum custodial sentence and fine that may be imposed for the offense to which he or she is pleading before the court accepts the plea. State v. Johnson, 182 N.J. 232, 241 (2005) ("hold[ing] that being subject to NERA's mandatory period of parole supervision constituted a direct, penal consequence of [a] defendant's plea," entitling the defendant to seek vacation of the plea); State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003) (holding "that community supervision for life imposed pursuant to N.J.S.A. 2C:43-6.4 is a penal and not a collateral consequence of the sentence"). Simply stated, "[w]hen one enters a plea of guilty, [one] should be told what is the worst to expect." State v. Kovack, 91 N.J. 476, 483 (1982) (quoting Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969)).

Appellant's argument regarding the failure of the trial court to inform him of the penal consequences of community supervision for life is misplaced. Appellant was not sentenced to community or parole supervision for life as a result of his guilty pleas. Nor could he be. N.J.S.A. 2C:43-6.4 ("Notwithstanding any provision of law to the contrary, a judge imposing sentence on a person who has been convicted of . . . sexual assault shall include, in addition to any sentence authorized by this . . . Code, a special sentence of parole supervision for life."). Appellant was adjudicated delinquent; he was not convicted of a crime.

Appellant is, however, subject to the registration and notification requirements of Megan's Law. Megan's Law was enacted "to aid law enforcement in apprehending sex offenders and to enable communities to protect themselves from such offenders." Doe v. Poritz, 142 N.J. 1, 25 (1995). "In general, the registration requirements of Megan's Law . . . apply to all individuals adjudicated delinquent for commission of a sex offense as defined in N.J.S.A. 2C:7-2b." In re Registrant J.G., 169 N.J. 304, 319 (2001). N.J.S.A. 2C:7-2b includes the offenses of sexual assault and "endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child."

Appellant contends that he was not informed that he would have to register under Megan's Law on his release. We disagree.

The transcript of the plea proceeding discloses the following colloquy among the court, the prosecutor, appellant's counsel and appellant prior to the court accepting appellant's pleas:

THE PROSECUTOR: Your honor, and just to reflect that counsel has explained to [appellant] and his mother that as a result of these pleas he will be subject to [Megan's Law] requirements. And I'm sure counsel has explained that, but I just wanted the record to be clear.

APPELLANT'S COUNSEL: Have I explained all of that to you?

APPELLANT: Yes.

THE COURT: That you'll be subject to the [Megan's Law] requirements, which may -- which will require you to register in your hometown as a sex offender. Do you understand that, [appellant]?

APPELLANT: Yes.

We are satisfied the above colloquy supports the State's argument that appellant was informed of his registration requirements at the plea hearing and that he understood them. Jamgochian, supra, 363 N.J. Super. at 227.

Lastly, appellant argues that the trial court failed to inform him of the specific tier in which he would be placed on his release. Although that may be so, we discern no reversible error. At the time of the plea hearing, it was impossible to inform appellant of the specific tier within which he would fall at the time of his release. To determine the appropriate extent of notification under N.J.S.A. 2C:7-8, the prosecutor is required to "assess the risk of re-offense by the registered person" and, "depending upon the risk of re-offense by the offender," place the offender in one of three tiers. The classification event occurs after a defendant is convicted and is at or near release back into the community. Doe, supra, 142 N.J. at 30-31.

Because the record evidences that appellant "understood the nature and consequences" of his guilty pleas, he has failed to show manifest injustice by his guilty pleas remaining in effect. R. 3:9-2.

III.

Lastly, appellant argues that he should have been permitted to withdraw his pleas because the proffered factual basis for each plea was "insufficient."

"It is clear that before accepting a guilty plea, the trial court must be satisfied that (1) there is a factual basis for the plea, (2) the plea is made voluntarily, and (3) defendant understands the nature of the charge and the consequences of the plea." Bellamy, supra, 178 N.J. at 134. The requirement that the court personally address a defendant to determine whether a factual basis exists "is designed in part to protect a [defendant] who is willing to plead guilty 'without realizing that his conduct does not actually fall within the charge.'" State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006) (quotations and citation omitted).

Put simply, "[t]he factual basis for a guilty plea must obviously include defendant's admission of guilt of the crime or the acknowledgement of facts constituting the essential elements of the crime." Ibid. The Court has made clear that these rules apply to juvenile proceedings as well, "so that a juvenile, just as an adult, must acknowledge or offer a factual basis for his or her guilty plea." T.M., supra, 166 N.J. at 326.

The first charge that appellant pled guilty to was sexual assault, N.J.S.A. 2C:14-2c. N.J.S.A. 2C:14-2c(1) provides that "[a]n actor is guilty of sexual assault if he commits an act of sexual penetration with another person . . . [by] us[ing] physical force or coercion, but the victim does not sustain severe personal injury." In determining the amount of force required, the Court has held:

[A]ny act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of 'physical force' is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.

[In the Interest of M.T.S., 129 N.J. 422, 444 (1992).]

Therefore, sexual penetration combined with the victim's failure to consent constitutes sexual assault under N.J.S.A. 2C:14-2c.

Here, the following colloquy occurred between the court and appellant regarding the sexual assault of K.P.:

THE COURT: Okay. And they allege in the complaint that it was sexual penetration by force or coercion. Can you tell the [c]ourt what you did?

APELLANT: I fingered her.

THE COURT: Okay. When you say you fingered her, what exactly do you mean by that?

APPELLANT: I put my finger in her vagina.

THE COURT: Okay. Did she consent to that?

APPELLANT: No.

We are satisfied the above admissions formed a sufficient factual basis for defendant's plea to sexual assault of K.P. However, we are not satisfied that appellant acknowledged or offered a factual basis for his second plea.

Appellant contends that he should have been permitted to have withdrawn his plea of guilty to endangering the welfare of a child based on an insufficient factual basis. N.J.S.A. 2C:24-4a provides:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child . . . is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

"Any other person" has been held to include juveniles engaging in prohibited sexual conduct with other juveniles. In the Interest of A.B., 328 N.J. Super. 96, 101 (Ch. Div. 1999).

Appellant was charged with endangering the welfare of A.H., who, like appellant, was thirteen years of age at the time of the incident. At the plea hearing, the following exchange occurred between appellant and his counsel:

COUNSEL: Okay. Can you tell what you did in that offense, with regard to the sexual conduct?

APPELLANT: I had oral sex.

COUNSEL: With?

APPELLANT: A.H.

COUNSEL: With A.H.?

APPELLANT: Yes.

COUNSEL: She performed oral sex upon you?

APPELLANT: Uh-huh.

THE COURT: Is that a yes?

APPELLANT: Yes.

The prosecutor then proceeded to cross-examine appellant:

PROSECUTOR: [D]o you think that affected her or impaired her morals, or debauched her morals?

APPELLANT: No.

PROSECUTOR: By engaging in that conduct, you don't think that it -

APPELLANT: No.

PROSECUTOR: You don't think that she was offended by it?

APPELLANT: It doesn't seem like she did or she was.

[(Emphasis omitted).]

Based on the above colloquy, the court accepted appellant's plea to third-degree endangering the welfare of a child.

Although "[e]very alleged deficiency in the taking of a factual basis does not constitute reversible error[,]" a factual basis will be considered insufficient "in those instances where the failure rises to constitutional dimensions[.]" State v. Pena, 301 N.J. Super. 158, 163 (App. Div.), certif. denied, 151 N.J. 465 (1997). Simply put, "[a] factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." State v. Mitchell, 126 N.J. 565, 577 (1992).

Appellant was thirteen years of age at the time of his plea hearing. When asked whether he had debauched the morals of A.H. by engaging in sexual conduct with her, he responded in the negative. Moreover, he denied that she was offended by the conduct, and implied that the activity was consensual. These statements constitute a "claim of innocence" by the juvenile, causing the factual basis to be insufficient for a plea of guilty under N.J.S.A. 2C:24-4. Put differently, the juvenile did not admit to "engag[ing] in sexual conduct which would impair or debauch the morals of the child[.]" N.J.S.A. 2C:24-4a. Accordingly, we reverse that part of the order of June 9, 2008, denying appellant's motion to withdraw his guilty plea to the charge of endangering the welfare of a minor; and remand to the Family Part for further proceedings on that charge.

 
Affirmed in part; reversed in part; and remanded to the trial court for further proceedings consistent with this opinion.

The notice of motion referenced six different docket numbers covering the nine offenses that S.M. pled guilty to on August 14, 2001, and October 11, 2002. However, both the State's and S.M.'s briefs indicate that the subject of the motion was limited to the guilty pleas of August 14, 2001. Accordingly, this appeal concerns only the August 14, 2001 pleas under Docket No. FJ-21-522-01 for the offense of sexual assault and Docket No. FJ-21-521-01 for the offense for endangering the welfare of a child.

Available at

www.judiciary.state.nj.us/directive/criminal/dir_05_03.pdf.

N.J.S.A. 2C:7-1 to -21.

No Early Release Act, N.J.S.A. 2C:43-7.2.

(continued)

(continued)

18

A-4982-07T4

RECORD IMPOUNDED

July 17, 2009