STATE OF NEW JERSEY v. T.J.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5845-07T4F5845-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

v.

T.J.,

Defendant-Respondent/

Cross-Appellant.

____________________________________________________

 

Submitted March 17, 2009 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-04-0613.

Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant/cross-respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent/cross-appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

PER CURIAM

On April 4, 1997, defendant was indicted for second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(5); third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a); and fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b). On September 2, 1997, defendant pled guilty to third-degree endangering the welfare of a child pursuant to a plea bargain under which the State agreed to dismiss the other charges and recommend a non-custodial probationary sentence "with lifetime 'Megan's Law' Registration."

The second question on the special plea form for sex offenders signed by defendant at the time of his plea asked:

Do you understand that if you are pleading guilty to a crime of Aggravated Sexual Assault, Sexual Assault, Aggravated Criminal Sexual Contact, Kidnapping pursuant to 2C:13-1, Endangering the Welfare of a Child by engaging in sexual conduct which would impair or debauch the morals or a child pursuant to 2C:24-4, Luring or an attempt to commit any such offense. The Court in addition to any sentence authorized by the code will impose a special sentence of community supervision for life?

"Yes" is circled in response. The question continued:

And, that any person who violates a condition of special sentence of community supervision is guilty of a crime of the fourth degree?

"Yes" is circled in response. Defendant signed this form on September 2, 1997.

In taking defendant's plea on September 2, 1997, the court had the following colloquy with him:

THE COURT: You've signed the form regarding the Megan's Law requirements including the fact that you must register and continue to register should you move.

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

The court did not provide defendant with any additional explanation of the requirements of Megan's Law.

On October 31, 1997, the trial court sentenced defendant in conformity with the plea bargain to a one-year probationary term. The judgment of conviction also required defendant "to register for Megan's Law within ten days." However, the judgment omitted the statutory requirement that defendant was subject to community supervision for life.

On May 27, 1999, defendant was charged with failure to register as a convicted sex offender, contrary to N.J.S.A. 2C:7-2(a). Defendant pled guilty to this charge on October 4, 1999, and was sentenced to two years probation on November 19, 1999.

In a letter dated February 19, 2003, the State Parole Board advised the trial court that defendant's sentence did not provide for community supervision for life, as mandated by N.J.S.A. 2C:43-6.4. The Monmouth County Prosecutor submitted a similar letter on February 26, 2003, which asked the court to amend defendant's judgment of conviction "to include a special sentence of community supervision for life."

On September 19, 2003, the trial court amended the judgment of conviction to include the requirement of "a special sentence of community supervision for life, pursuant to N.J.S.A. 2C:43-6.4." On October 24, 2003, a parole officer presented defendant with a form entitled "Community Supervision For Life" that explained the requirements of such supervision, and defendant signed the form. Defendant did not appeal from the amended judgment of conviction that added the requirement of community supervision for life.

On October 4, 2006, defendant filed a pro se petition for post-conviction relief, which was based on the amendment of the judgment of conviction to include the requirement of community supervision for life. Defendant alleged that he was unaware of the requirements of community supervision for life until the amended judgment was entered. He further alleged that he was "facing numerous 'community supervision for life' violations" and that his parole officer had advised him he could not be around his children.

On October 22, 2007, defendant filed a motion to withdraw his 1997 and 1999 guilty pleas on the ground that he had not been advised by either defense counsel or the trial court of the requirement of community supervision for life "and what this meant" when he pled guilty. In his certification in support of the motion, defendant stated:

Had I known about the community supervision for life requirement, I would not have pled guilty to the third degree endangering the welfare of a child charge in Indictment No. 97-04-0613 or the subsequent failure to register charge.

The trial court conducted a hearing on defendant's petition for post-conviction relief and motion to withdraw his guilty plea at which both defendant and his counsel testified that they had not discussed the requirements of community supervision for life at the time of the plea. Defendant argued that the amendment of his judgment of conviction to include the requirement of community supervision for life violated his right to Due Process and therefore should be stricken from the judgment. Alternatively, defendant argued that he should be allowed to withdraw his guilty plea on the ground that he had not been informed of the consequences of community supervision for life.

The trial court concluded in an oral opinion that the amendment of defendant's judgment of conviction to include the statutorily mandated supervision for life did not violate Due Process. However, the court granted defendant's motion to withdraw his guilty plea on the ground that he was not informed by his attorney or the court of the consequences of community supervision for life. The court entered an order on April 7, 2008, memorializing these rulings. The court subsequently denied the State's motion for reconsideration.

Both the State and defendant filed motions for leave to appeal from the April 7, 2008 order, which we granted.

I.

We reject the arguments presented on defendant's appeal and affirm the part of the April 7, 2008 order that upheld the amendment of the judgment of conviction to include the provision for community supervision for life substantially for the reasons set forth in the trial court's April 4, 2008 oral opinion. The trial court's decision regarding this issue is directly supported by State v. Horton, 331 N.J. Super. 92, 97-102 (App. Div. 2000), which held that the requirement of community supervision for life is a mandatory component of a sentence for any of the offenses enumerated in N.J.S.A. 2C:43-6.4 and therefore the omission of this requirement constitutes an illegal sentence, which may be corrected at any time. The only distinction between Horton and this case is that the judgment of conviction in Horton was corrected to add the requirement of community supervision for life eighteen months after sentencing while defendant's judgment of conviction was not amended until six years after sentencing. However, a court's obligation to correct an illegal sentence continues even though a substantial period of time has elapsed. See, e.g., State v. Baker, 270 N.J. Super. 55, 61-63, 71-77 (App. Div.), aff'd o.b., 138 N.J. 89 (1994) (more than four years); see also State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 70 N.J. 207 (2001). We also agree with the trial court's conclusion that even though defendant should have been given notice and an opportunity to be heard before the judgment of conviction was amended to add the requirement of community supervision for life, this procedural defect does not affect the validity of the amended judgment because community supervision for life was a statutorily mandated component of defendant's sentence, which the judgment could be amended to reflect at any time.

II.

During the pendency of this appeal, our Supreme Court decided State v. Slater, ___ N.J. ___ (2009), which set forth standards for a trial court to apply in considering a motion to withdraw a guilty plea: "(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." Id. at ___ (slip op. at 13). All four of these factors must be considered in ruling upon a motion to withdraw a plea. Ibid. "No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Id. at ___ (slip op. at 20).

Based on the four factors set forth in Slater, we conclude that the trial court erred in granting defendant's motion to withdraw his guilty plea.

Defendant does not claim that he is innocent of the charge to which he pled guilty. In fact, defendant gave a written statement to the police before his plea in which he admitted having sexual intercourse with the victim ten times over a period of a year-and-a-half knowing that she was underage. Thus, the first Slater factor weighs against allowing defendant to withdraw his guilty plea.

Defendant pled guilty pursuant to a highly favorable plea bargain under which the State agreed to dismiss the charge of second-degree sexual assault and recommend a probationary sentence that would not require defendant to serve any period of incarceration. Thus, the third Slater factor also weighs against allowing defendant to withdraw his guilty plea.

Defendant did not file a motion to withdraw his guilty plea until approximately ten years after entry of the judgment of conviction. Moreover, defense counsel indicated at argument on the motion that he had spoken with the victim and that she indicated she would not be a cooperative witness if the case were now tried. Therefore, it appears the State would be unfairly prejudiced if it were required to prosecute the charges against defendant more than ten years after occurrence of the acts upon which they were based and that the fourth Slater factor also weighs against allowing defendant to withdraw his guilty plea.

The only one of the Slater factors that provides any support for defendant's motion is the second factor -- "the nature and strength of defendant's reasons for plea withdrawal" -- specifically, the failure of defense counsel and the trial court to explain the consequences of community supervision for life. As to this factor, defendant was required to show that his "lack of knowledge of" the community supervision for life component of his sentence mandated by N.J.S.A. 2C:43-6.4 "was material to [his] decision to plead guilty and prejudiced defendant." State v. Johnson, 182 N.J. 232, 241 (2005). A guilty plea "will not be vacated if knowledge of the consequences [that were not explained to the defendant] would not have made any difference in the defendant's decision to plead." Id. at 242 (quoting State v. Howard, 110 N.J. 113, 123 (1988)).

Defendant's testimony as to whether he would have pled guilty if he had been aware of the requirement of community supervision for life was equivocal:

Q. [T.J.], you indicated that if you had gone to jail it all would have been over for you. Are you aware that even if you went to jail you'd still be on community supervision for life? You can't get rid of the community supervision for life with a sex offense?

A. Technically if you say it like that, yeah. When I say that I mean that all this time later for me to still be doing this, I wouldn't even have opened a can of worms at all if they wouldn't have changed my life. That parole thing was totally changed me to a knock on the door and all of a sudden now you have to report to us. You can't live with your children. I had to pay $250 for an evaluation. That was supposed to be for Avenel. I don't know how they even found the --

Q. So, are you saying you would have chosen going to trial, potentially going to jail at that time?

A. Of course, I'd never want to go to jail. But there may have been another option. Okay, if you're doing this, Mr. Jenkins, you're going to be Megan's Law. You're going to have parole and you may not be with your children. Okay, well what other options do we have?

Is there a lesser charge maybe I can maybe try to go for? It was never offered. But is it possible?

Q. [T.J.], if there was no other options. You either went to trial or you took a plea. Are you saying you would not have taken this plea? You would have gone to trial and risk going to jail for five to ten years? If that's what you're saying.

. . . .

A. It's a yes.

THE COURT: All right. Okay and he has difficulty answering that question. The record should reflect that.

The trial court's findings regarding this issue were also equivocal:

Defendant must then show that knowledge of these consequences would have impacted his decision to plead guilty. Now, this particular case is complicated by the fact that this defendant got a great plea agreement in this particular case.

. . . .

And I realize that the State presents a situation where you know, this defendant was not prejudiced. Anybody in their right mind would have accepted this plea, because of the circumstances of this particular case. And so therefore, if he was aware of this back in 1997, he would have accepted the plea at any rate.

While the defendant was really hesitant about whether he would be or would not in his answers to this particular Court because it is a tough issue. But I think the knowledge of that certainly would have impacted on his decision one way or another. And it's hard, some six to ten years later to judge what the impact would be.

Moreover, at the points in defendant's testimony when he seemed to indicate that he would not have pled guilty if he had been aware of the requirement of community supervision for life, the only adverse consequence of such supervision to which he referred was that it was preventing him from residing with his children. However, any condition of parole, including the parole to which a person sentenced to community supervision for life is subjected, must be reasonable, and administrative remedies are available to challenge any unreasonable condition of parole. See Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 241-42 (2008); Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 187-89 (App. Div. 2004). A parole officer could not reasonably bar defendant from residing with his children simply because he had consensual sex more than ten years ago with a thirteen or fourteen year old female (the indictment alleges that the victim was "age 13 thru 14" when the offense was committed). Therefore, unless there are other circumstances in defendant's record that are not revealed by the record before us, it would appear that the primary alleged consequence of parole supervision for life to which defendant objects could be remedied administratively.

Consequently, we conclude that application of the Slater factors, including the absence of a colorable claim of innocence, the existence of a plea bargain that was highly favorable to defendant, the prejudice to the State if it were now required to try the charges against defendant, and defendant's questionable stated reason for seeking to withdraw his plea, requires a reversal of the order allowing defendant to withdraw his guilty plea.

Accordingly, we affirm the part of the April 7, 2008 order that upheld the amendment of the judgment to add the requirement of community supervision for life. We reverse the part that granted defendant's motion to withdraw his guilty plea.

 

Currently N.J.S.A. 2C:14-2(c)(4) (as amended by L. 1997,

c. 194, 1).

We note that N.J.A.C. 10A:71-6.11(c)(3) provides that a person convicted of a sexual offense that includes as part of the sentence community supervision for life is prohibited from residing with any minor without the prior approval of the assigned parole officer. However, N.J.A.C. 10A:71-6.11(d)(2) provides an exception from this prohibition "[w]hen the minor is in the physical presence of his or her parent." We do not know whether this exception was intended to apply to a parent's residence with his or her own children, but even if N.J.A.C. 10A:71-6.11(d)(2) is inapplicable, a prohibition against a parent residing with his own children would not be reasonable in the kind of circumstances presented by this case.

(continued)

(continued)

14

A-5845-07T4

RECORD IMPOUNDED

April 14, 2009