STATE OF NEW JERSEY v. ROBERT E. VANAMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4987-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ROBERT E. VANAMAN,

Defendant-Appellant.

__________________________________

July 6, 2011

 

Submitted: March 2, 2011 - Decided:

 

Before Judges Cuff, Sapp-Peterson and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-02-0165.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

 

Jennifer Webb-McRae, Cumberland County Prosecutor,attorney for respondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert E. Vanaman pled guilty to passion-provocation manslaughter and tampering with evidence. The victim was his wife. He also agreed to waive his right to appeal and his right to pursue post-conviction relief. He is serving an eight-year term of imprisonment subject to the No Early Release Act1 (NERA) for passion-provocation manslaughter and a consecutive one-year term for tampering. The following facts are derived from defendant's guilty plea, the pre-sentence report, and the extensive hearing at the time the judge imposed sentence.

Defendant was a fifteen-year veteran of the Millville Police Department and had been married to Barbara Vanaman for sixteen years. The couple had two sons, who were four and fourteen years old at the time of Barbara's death.

The course of the marriage was apparently contentious; Barbara had engaged in at least two extra-marital affairs before becoming involved in a third affair with a co-worker. By May 2006, Barbara had decided to leave defendant and her sons, and pursue a permanent relationship with her paramour.

On May 11, 2006, after defendant arrived home from work, Barbara informed defendant and her sons that she intended to leave and spend the summer in Ocean City. Defendant became angry because Barbara was leaving and apparently felt no reluctance over leaving defendant with all the responsibilities of caring for their sons. During an escalating argument, Barbara grabbed a kitchen knife and swung it at defendant. The two struggled at close quarters, but defendant freed himself and drew his service weapon.

Defendant warned Barbara that he would shoot, if she did not lower and relinquish the knife. She ignored the warning and continued to wield it in his direction. Defendant shot Barbara twice, but claimed the second shot was fired involuntarily because the gun lacked a safety.

Defendant called 9-1-1, but not before he scraped his arms with the kitchen knife that Barbara had been holding. A forensic expert later determined that defendant's wounds were likely self-inflicted. The records of the 9-1-1 dispatcher revealed defendant advised the dispatcher that he had been stabbed by his wife and shot her in self-defense. When the police responded to the scene, they observed the uniformed defendant, the unresponsive victim, and a broken kitchen knife on the floor.

After the return of a six-count indictment,2 defendant pled guilty on March 30, 2009, to passion-provocation manslaughter, in violation of N.J.S.A. 2C:11-4b(2), and tampering with physical evidence, in violation of N.J.S.A. 2C:28-6. As part of the plea agreement, defendant agreed to waive his right to appeal and to post-conviction relief. The judge elicited the following admissions from defendant:

THE COURT: Do you understand that by pleading guilty that [you are] waiving all these important rights [jury trial; confrontation of witnesses], and as well as making any applications before the Court, such as you're waiving your right of appeal and right of post conviction relief. You understand that, as well?

 

[DEFENDANT]: Yes, your Honor.

 

THE COURT: These are all very, very important rights and you're waiving all these rights voluntarily?

 

[DEFENDANT]: Yes, sir.

 

THE COURT: I know this is not easy to do, but I have to make sure that this is what you're doing of your own volition, and can I be convinced that you are doing this of your own volition.

 

[DEFENDANT]: I'm doing this on my own, your Honor, yes.

 

Defendant's plea form reflected his decision to waive his ability to seek post-conviction relief. Item 13 on the plea form provides, "[d]efendant pleads open; [n]o recommended sentence other than both counts to run consecutively; waiver of right to appeal [and] post conviction relief; forfeit job as police officer." Defendant reaffirmed each waiver at sentencing.

Following the guilty plea, the trial judge conducted a lengthy and exhaustive sentencing hearing. The judge settled on the sentence after finding two aggravating and four mitigating factors. Specifically, the judge found aggravating factor four, N.J.S.A. 2C:44-1a(4), that defendant took advantage of a position of trust and or confidence to commit the offense because defendant was a police officer. The judge explained:

The defendant has used his position of public trust, his intimate knowledge of the inner-workings of the criminal justice system to intentionally manipulate that system. Such wrongful conduct cannot go unpunished.

 

The judge was also convinced that on balance, the presence of aggravating factor four "clearly trumps, outweighs all the mitigating circumstances[,] . . ."

On appeal, defendant raises the following arguments:

POINT I

THE WAIVER OF THE RIGHT TO POST-CONVICTION RELIEF IN THE PLEA AGREEMENT IS VIOLATIVE OF THE DEFENDANT'S RIGHT TO DUE PROCESS, AND VIOLATES OUR STATE'S PUBLIC POLICY, AND THEREFORE MUST BE VOIDED. U.S. CONST., AMEND XIV; N.J. CONST., ART. 1, PARS. 1, 10. (Not Raised Below).

A. The Purported Waiver of PCR Is Improper.

B. The Waiver of PCR Should Be Deleted From the Plea Agreement, With the Remainder Of the Agreement Left Intact.

POINT II

THE BASE TERM IMPOSED BY THE TRIAL COURT WAS EXCESSIVE, AND THE COURT IMPROPERLY IMPOSED CONSECUTIVE SENTENCES.

A. The Trial Court Improperly Found and Weighed Aggravating and Mitigating Factors.

 

B. The Trial Court Improperly Imposed a Consecutive Sentence For Tampering.

I

In this appeal, defendant raises the novel issue of whether a non-capital, criminal defendant may waive his right to post-conviction relief in a written plea agreement.3 The Supreme Court has addressed the issue of waiver of post-conviction relief in capital cases. In State v. Martini, 144 N.J. 603, 605, 616-18 (1996), the Court barred a defendant, who had been sentenced to death, from waiving an application for post-conviction relief filed on his behalf by the Office of the Public Defender. The Court reasoned "post-conviction relief [ensures] the reliability and integrity of death sentences imposed in New Jersey." Id. at 609. This case, however, is not a capital case and the issue of the validity and effectiveness of the waiver is raised on direct appeal. Given the posture of this case, we consider the issue of the validity of the waiver premature, except to the extent the inclusion of the waiver may have undermined the knowing and voluntary nature of the plea.

The record of the plea proceeding clearly indicates that the guilty plea entered by defendant was knowing and voluntary. Defendant acknowledged the effect of the guilty plea, and the rights he surrendered. He acknowledged that the plea agreement did not contain a recommended term; rather the State and defendant agreed to allow the judge to fashion the appropriate sentence. In short, it was an "open" plea as to the sentence. Therefore, we identify no basis to conclude that the decision to plead guilty was informed in any way by a waiver of defendant's right to post-conviction relief.

II

The plea agreement left the sentence to the discretion of the judge. As a second degree offense, the judge could impose a term of imprisonment between five and ten years. N.J.S.A. 2C:43-6a(2).

The judge imposed an eight-year term of imprisonment for the passion-provocation manslaughter charge and a consecutive one-year term on the tampering with evidence charge. In fashioning the sentence on the manslaughter charge, the judge heavily emphasized aggravating factor four, N.J.S.A. 2C:44-1a(4), which allows the judge to consider that "[a] lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense." Chapter 27 refers to N.J.S.A. 2C:27-1 to -12 and generally concerns offenses against public administration. These offenses include bribery in official and political matters, N.J.S.A. 2C:27-2; threats and other improper influence in official and political matters, N.J.S.A. 2C:27-3; retaliation for past official action, N.J.S.A. 2C:27-5; unlawful official business transaction, N.J.S.A. 2C:27-9; acceptance or receipt of unlawful benefit by public servant for official behavior, N.J.S.A. 2C:27-10; offer of unlawful benefit to public servant for official behavior, N.J.S.A. 2C:27-11; and corruption of public resources, N.J.S.A. 2C:27-12. Chapter 30 refers to N.J.S.A. 2C:30-1 to -8 and includes such offenses as official misconduct, N.J.S.A. 2C:30-2; speculating or wagering on official action or information, N.J.S.A. 2C:30-3; and disbursement of money or incurring of obligations by public officials in excess of appropriations or limit, N.J.S.A. 2C:30-4. None of these offenses implicate the unlawful killing of one spouse by the other.

Aggravating factor four would be applicable only if defendant "took advantage of a position of trust or confidence to commit the offense." Neither the record nor case law allows application of this factor in this case.

We have held that the position of trust language of N.J.S.A. 2C:44-1a(4) applies when an accounts payable manager stole substantial sums of money from her employer, State v. Jones, 197 N.J. Super. 604, 606-07 (App. Div. 1984); or when a teacher and camp director sexually assaulted an eleven-year-old boy, State v. Hess, 198 N.J. Super. 322, 326, 330 (App. Div. 1984); or when a supervisor in a juvenile shelter engages in sexual contact with a juvenile resident, State v. Martin, 235 N.J. Super. 47, 49, 59 n.8 (App. Div.), certif. denied, 117 N.J. 669 1989); or theft by a person entrusted with management and investment of pension funds, State v. Modell, 260 N.J. Super. 227, 255-56 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993). The unifying thread in these cases is that someone had reposed considerable trust and discretion in the defendant, and the defendant misused that trust to enrich himself at the expense of an employer or client, or the defendant sought personal gratification by sexually assaulting someone in their care or under their supervision. If defendant had used his position as a police officer to lure a victim into a dangerous situation, or if defendant had assaulted a detainee while the victim was under his supervision or control, or if defendant had used his status to extort money, we would not hesitate to allow aggravating factor four to be invoked and weighed in fashioning an appropriate sentence. Here, however, the factual predicate for invocation of this aggravating factor is only the simple fact of defendant's employment. We have not located any case in which the defendant's mere status as a police officer, who committed a violent offense against his spouse, permitted use of this aggravating factor.

We recognize that fashioning an appropriate sentence in this case was a difficult task. The record of the sentencing hearing clearly demonstrates the care taken by the judge. In this case, however, the aggravating factor on which the judge so heavily relied is not relevant in this situation. We, therefore, remand for resentencing.

Affirmed in part; remanded for resentencing. We do not retain jurisdiction.

1 N.J.S.A. 2C:43-7.2.

2 The grand jury charged defendant with third degree criminal restraint, first degree murder, second degree possession of a weapon for an unlawful purpose, third degree hindering apprehension or prosecution, fourth degree tampering with physical evidence, and fourth degree obstructing the administration of law or other governmental function.

3 Defendant also waived his right to appeal. The State has not invoked this waiver to bar this appeal.