STATE OF NEW JERSEY v. MILTON P. DURHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3355-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MILTON P. DURHAM,

Defendant-Appellant.

_____________________________

November 2, 2012

Submitted October 11, 2012 - Decided

Before Judges Grall, Simonelli and Accurso.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment

No. 84-10-1449.

Bruce I. Afran, attorney for appellant.

James P. McClain, Acting Atlantic County

Prosecutor, attorney for respondent (James

F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

In 1985, the State offered defendant Milton P. Durham a plea agreement to resolve a thirty-two count indictment charging defendant with "burglary, terroristic threats, kidnapping, aggravated sexual assaults, an attempted aggravated sexual assault, abuse of children, and unlawful possession of CDS." State v. Durham, A-1877-85 (App. Div. Nov. 4, 1987) (slip op. at 2). Defendant committed the crimes during a home invasion in which he confined seven children in a bedroom and compelled five of them to engage in sexual conduct by threatening them with an imitation firearm.

Defendant accepted the agreement, which called for him to plead guilty to five counts fifteen, eighteen, twenty-one, twenty-four and twenty-seven charging aggravated sexual assault involving five children under the age of thirteen, N.J.S.A. 2C:14-2a(1), and the State to dismiss the other charges. Durham, supra, slip op. at 2. Count fifteen involved a child defendant compelled to "perform fellatio on him" and the remaining counts involved two different pairs of children whom he compelled to perform fellatio on one another. Ibid.

At the time of the plea, the prosecutor, citing N.J.S.A. 2C:44-1f(2), explained that the agreement was to have counts eighteen, twenty-one, twenty-four and twenty-seven treated as "crimes of the second degree as opposed to first degree." He stressed, "That is only for those four counts." The judge interrupted and inquired: "Do I understand that this would not would not refer to count fifteen, however?" The prosecutor said that was correct, and the judge clarified: "That would remain a first degree?" The prosecutor confirmed it would.

The judge then turned to defendant, advised him that he would be pleading guilty to a first-degree crime on count fifteen, described the sanctions associated with such a crime, and asked if defendant was aware of that. Defendant responded, "Yes." The judge further explained the sentences associated with the four second-degree crimes, and he then advised defendant that he would have the discretion to impose a parole ineligibility term of up to thirty years.

The plea form defendant signed listed the five counts to which defendant would plead on separate lines. In the margin to the left of that list was the following handwritten note: "*AS AMENDED TO SECOND DEGREE: AS TO COUNTS 15, 18, 21, 24 & 27." Consistent with the colloquy at the time of the plea, however, the "*" only appeared in front of the four lines referring to counts eighteen, twenty-one, twenty-four and twenty-seven.

Prior to sentencing, defendant moved to vacate his guilty plea, but that motion was denied. He was sentenced to an aggregate term of forty years, twenty to be served prior to parole. The aggregate term is comprised of a twenty-year term for count fifteen, and ten-year terms for the remaining counts. The sentences on defendant's convictions for each pair of children he compelled to engage in sexual conduct with one another are concurrent with one another yielding an aggregate ten-year term for each pair. The aggregate ten-year term for the first pair is consecutive to the twenty-year sentence on count fifteen, and the aggregate ten-year term for the second pair is consecutive to the ten-year sentence for the first pair.

On direct appeal, we affirmed defendant's sentence and the denial of his motion to vacate the plea. Id. at 9-12. In addressing the motion to vacate, we noted that the judge had "elicited defendant's acknowledgement of a full understanding of the consequences of his pleas." Id. at 7. The Supreme Court denied certification. State v. Durham, 110 N.J. 186 (1988).

Subsequently, we affirmed the denial of defendant's petition for post-conviction relief. State v. Durham, A-5566-90 (App. Div. June 22, 1992). The Supreme Court denied certification. 130 N.J. 597 (1992).

This appeal is from the denial of a motion to correct an "illegal sentence" filed in September 2009. In that motion, defendant contended that his sentence on count fifteen was illegal because the plea form indicated that count fifteen would be treated as a crime of the second degree. Judge Donio denied the motion, explaining that "both the plea form and the plea transcript indicate[] count fifteen was to remain a first-degree offense, while only counts eighteen, twenty-one, twenty-four and twenty-seven were to be amended to second degree offenses."

Defendant further asserted that he understood the maximum sentence he would receive was twenty years with no period of parole ineligibility. Judge Donio concluded that defendant's asserted misunderstanding did not state a claim upon which relief could be granted.

On this appeal defendant argues:

I. MR. DURHAM WAS INCORRECTLY SENTENCED

TO A FIRST DEGREE TERM ON COUNT 15.

A. A Plea Agreement is a Binding

Contract that Must Be Enforced Strictly By Its Terms.

B. Ambiguity in the Plea Agreement Requires that the Plea be Vacated and the Defendant be Permitted to Re-plead.

C. The failure to credit the full amended plea materially prejudiced the defendant since the maximum sentence under the amendment would have been thirty years, not forty.

D. Defendant's "reasonable expectations" of the degree and severity of the sentence are formed by the structure of the amending language as written on the plea agreement.

E. An understanding of a 30-year sentence under the plea in this case is not objectively unreasonable in light of the nature of the offenses to which Petitioner pled.

II. STATEMENTS OF BOTH THE PROSECUTOR AND

DEFENSE COUNSEL HAD THE EFFECT OF CONCEALING THE CONFLICT BETWEEN THE PLEA AS ENTERED AND THE ACTUAL TEXT OF THE PLEA AGREEMENT.

III. AMBIGUITY IN THE PLEA AGREEMENT MUST BE

CONSTRUED IN MR. DURHAM'S FAVOR.

IV. UNDER THE HOLDING OF STATE v. NEMETH,

214 N.J. Super. 324 (App. Div. 1986), THE SENTENCE BASED ON AGGRAVATING FACTORS IS INCONSISTENT WITH THE PLEA TO FOUR DOWNGRADED OFFENSES.

V. DEFENDANT WAS DENIED HIS RIGHT TO THE

EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL, APPELLATE AND PCR STAGES WITH RESPECT TO THE FAILURE OF COUNSEL TO RAISE THE DISCREPANCY UNDER THE STATE V. NEMETH STANDARD AND WITH RESPECT TO THE FAILURE TO PROTECT HIS RIGHTS UNDER THE AMENDMENT TO THE PLEA AGREEMENT.

After considering these arguments in light of the record, we find them to have insufficient merit to warrant extensive discussion. We affirm substantially for the reasons stated by Judge Donio in his letter opinion of January 6, 2010, and those that follow. R. 2:11-3(e)(2).

"[A]n illegal sentence is one that 'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)). With respect to count fifteen, there is no ambiguity in the plea form that was not completely clarified during the extensive colloquy on the degree of that crime. In short, defendant pled guilty to a crime of the first degree on that count and received a sentence within the lawful range. N.J.S.A. 2C:43-6a(1).

Defendant relies on State v. Nemeth, 214 N.J. Super. 324 (App. Div. 1986) to establish that his sentence was illegal because it was not imposed in accordance with the law. In Nemeth, we held that inconsistency between the balancing of aggravating and mitigating factors for the purpose of fixing the duration of a term, N.J.S.A. 2C:44-1f(1), and for the purpose of imposing sentence for a crime of the first degree appropriate for a crime of the second degree, N.J.S.A. 2C:44-1f(2), results in an illegal sentence. 214 N.J. Super. at 327. On defendant's direct appeal, however, we addressed the inconsistency in this case and concluded that the judge had neutralized the error that redounded to defendant's benefit by imposing consecutive sentences. Durham, supra, slip op. at 11-12.1 Thus, the claimed illegality has been addressed.

To the extent defendant challenges his understanding of the plea and his counsel's performance, he seeks relief that cannot be granted on a motion to correct an illegal sentence or an appeal from its denial.

Affirmed.

1 The conclusion that there was an inconsistency in this case is not compelled by the record. At the time of the plea, the prosecutor stated that he was "mov[ing] . . . to amend counts eighteen, twenty-one, twenty-four and twenty-seven to reflect aggravated sexual assault, crimes of the second degree as opposed to the first degree." Thus, defendant's sentence on these counts are within the second-degree range. N.J.S.A. 2C:43-6a(2). There was no need to apply N.J.S.A. 2C:44-1f(2).