STATE OF NEW JERSEY v. EDWARD F. MILIUS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0406-05T40406-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD F. MILIUS,

Defendant-Appellant.

______________________________

 

Submitted August 14, 2007 - Decided August 21, 2007

Before Judges S.L. Reisner and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-07-1245-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Edward Milius appeals from a forty-year sentence imposed by the trial judge, comprised of two consecutive twenty-year sentences, following defendant's agreement to a plea bargain that called for a maximum aggregate sentence of twenty years. Having concluded that the sentence was imposed based on a mistaken understanding as to the plea agreement, we reverse and remand for a new sentencing hearing.

I

Defendant was arrested and charged with repeatedly molesting a young girl under the age of thirteen, over a period of three years. He agreed to plead guilty to two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a. The terms of the written plea form are virtually illegible, but appear to refer to the plea as "open ended." At defendant's plea hearing on November 15, 2004, the prosecutor described the plea bargain as "the defendant is pleading guilty open-ended; the only recommendation by the State is that both counts run concurrent, and sentencing will be left to the judge's discretion." However, when the judge reviewed with defendant the terms of the plea deal, he described a different agreement. After noting that the State had agreed to dismiss two counts of the indictment, the court engaged defendant in the following colloquy:

[The court]: But the plea otherwise is open-ended; and what that means is that sentencing will be left entirely to the Court's discretion. That means that I could impose ten years, which is the minimum, or 20 years, which is the maximum, and the only promise that's made is that the sentences on each of the offenses will be concurrent with each other. Do you understand that?

[Defendant]: Yes, I do.

[emphasis added.]

The prosecutor made no objection to the plea agreement terms as the judge stated them. Defendant was also advised that he would be evaluated to determine whether he should be sentenced to Avenel as a repetitive and compulsive sex offender. At the conclusion of the hearing the judge indicated that "[a]ny and all promises made to induce this plea are limited to those that are set forth on the record. And [defendant] fully understands the parameters of this plea agreement."

On February 10, 2005, Dr. Singer issued the report of his evaluation of defendant, opining that defendant was a repetitive and compulsive sex offender who "would accept sex offender treatment albeit reluctantly" and that he had "the psychological resources to benefit from such treatment." Dr. Singer also opined that "[defendant's] pattern of sexual offending behaviors, from the psychological evidence generated, convincingly satisfies the necessary elements for sentencing under the purview of the New Jersey Sex Offender Act."

Defendant was not sentenced until August 12, 2005. At the beginning of the hearing, the judge questioned whether defendant was amenable to treatment at Avenel, in light of defendant's statements to Dr. Singer about his ambivalence. In response to the judge's questions, defendant's counsel assured the judge that defendant was "[a]bsolutely" willing to accept treatment. Defense counsel also withdrew the objections that he had initially raised concerning the factual basis for Dr. Singer's report, and he clarified that although defendant had previously had treatment for alcoholism he had not had any previous sex offender treatment despite a 1989 conviction for a sex offense.

Reminding the judge that his client was almost seventy years old at the time, defense counsel stated "Your Honor has the ability to impose consecutive sentences with respect to this particular matter. And of course, that would effectively ensure that Mr. Milius would never, ever see the light of day." He urged imposition of concurrent ten-year sentences.

Following counsel's remarks, the judge heard eloquent statements from the child's mother and from another of defendant's victims, detailing the damage inflicted by defendant's crimes and urging the court to impose the maximum sentence. Thereafter, contrary to the State's acknowledged agreement to recommend concurrent sentencing, the prosecutor simply "ask[ed] the court to impose the maximum sentence pursuant to the plea agreement."

In sentencing defendant, the judge accepted Dr. Singer's opinion that defendant's behavior was repetitive and compulsive and that defendant "couldn't stop himself." However, he concluded that Dr. Singer's opinion that defendant "ambivalently reported that he would accept sex offender specific treatment" was "as a matter of law" insufficient for the court to find that defendant was amenable to treatment. The judge also relied on defendant's statement that he would accept treatment "[i]f there was any chance of being on the street again . . . but otherwise no." The judge blamed defendant for failing to get treatment on his own after his earlier offenses, and concluded that defendant was "willing to say he's willing to get treatment, because he doesn't want to go where he belongs. He doesn't want to spend his term of incarceration in a maximum security facility. . . He wants to go to . . . Avenel which, by comparison from a punitive aspect, is like going away to camp." The judge further concluded that, in view of the length of defendant's sentence and his age, "to sentence this man to Avenel would be a waste of resources." He then sentenced defendant to two consecutive terms of twenty years, subject to the No Early Release Act.

II

On this appeal, defendant raises the following issues for our consideration:

POINT I: THE TRIAL COURT VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WHEN IT ORDERED THAT THE SENTENCES BE CONSECUTIVE INSTEAD OF THE CONCURRENT SENTENCES PROMISED TO DEFENDANT IN THE PLEA AGREEMENT. (Not Raised Below).

POINT II: THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WHEN IT UNILATERALLY REJECTED THE AVENEL EVALUATION WITHOUT GIVING DEFENDANT ADEQUATE NOTICE OR A REASONABLE OPPORTUNITY TO PRESENT TESTIMONY AS TO HIS SUITABILITY FOR SEX OFFENDER TREATMENT. IN ADDITION, THE FACTORS RELIED UPON BY THE TRIAL COURT TO REJECT THE AVENEL RECOMMENDATION WERE CLEARLY IMPROPER.

A. The Defendant Was Denied His Due Process Right To A Hearing On Whether He Qualified For Sex Offender Treatment.

B. The Trial Court Relied Upon Improper Factors In Ruling That Defendant Did Not Qualify For Sex Offender Treatment.

POINT III: EVEN IF COUNTS ONE AND TWO ARE MADE TO RUN CONCURRENTLY, DEFENDANT'S SENTENCE IS STILL EXCESSIVE AND BASED UPON IMPROPER FACTORS, INCLUDING THE COURT'S ASSUMPTION THAT IN HIS PRIOR CASES, DEFENDANT "GOT AWAY WITH IT" AND WAS GUILTY OF MUCH MORE SERIOUS OFFENSES THAN THOSE FOR WHICH HE HAD BEEN CONVICTED.

POINT IV: THE IMPOSITION OF A $200 SEXUAL ASSAULT PENALTY VIOLATES THE EX POST FACTO CLAUSES OF THE FEDERAL AND STATE CONSTITUTION. (Not Raised Below).

We begin with the well-established principle that a defendant who enters into a plea agreement is entitled to the benefit of that bargain, subject to the right of the court to reject the agreement and give defendant the opportunity to withdraw the plea. See State v. Jones, 66 N.J. 524, 525-26 (1975) ("[T]he terms and conditions of a plea bargain must be meticulously carried out."); State v. Kovack, 91 N.J. 476, 484-86 (1982); R. 3:9-3(e).

In this case, the agreement to which the defendant agreed on the record after questioning by the court was for a maximum of two concurrent twenty-year sentences. Moreover, even if the prosecutor had a different understanding of the agreement than the terms the judge stated at the plea hearing, the prosecutor clearly stated on the record at that hearing that the State agreed to recommend concurrent sentences. However, perhaps because of the emotional circumstances of the sentencing hearing combined with the disturbing nature of defendant's admitted offenses, the plea agreement apparently went by the wayside. The court failed to observe the proper procedures attendant on rejecting a plea agreement, the State failed to honor its part of the bargain, and defense counsel inexplicably failed to remind the court of the terms the court set forth on the record when defendant agreed to plead guilty. These errors require that we remand this case for a new sentencing hearing at which all participants understand the plea agreement to be two concurrent twenty-year sentences. See Jones, supra, 66 N.J. at 526; Kovack, supra, 91 N.J. at 484-86.

We have been advised that defendant is currently confined at Avenel as a protective measure despite the trial judge's determination not to sentence him to Avenel; it is not clear whether defendant is receiving treatment there. On remand the court shall also consider anew whether defendant should be sentenced to Avenel based on Dr. Singer's report and based on any supplemental reports from Avenel which may be available now that defendant is incarcerated there. Defendant's contentions concerning the $200 surcharge may also be raised at the hearing on remand.

In light of our disposition, we deem it premature to address defendant's argument that his sentence was excessive. Out of an abundance of caution, we direct that the sentencing hearing on remand shall be assigned to a different trial judge.

Reversed and remanded.

 

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8

A-0406-05T4

RECORD IMPOUNDED

August 21, 2007