DOCKET NO. A-1997-08T11997-08-T1 STATE OF NEW JERSEY IN THE MATTER OF REGISTRANT B.A IN THE MATTER OF REGISTRANT B.A

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0109-08T1

DOCKET NO. A-1997-08T11997-08-T1

STATE OF NEW JERSEY IN THE

MATTER OF REGISTRANT

B.A.

________________________________

IN THE MATTER OF REGISTRANT

B.A.

_________________________________

 

Argued November 12, 2009 - Decided

Before Judges Stern and Newman

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FJ-02-2873-05 and Law Division, Criminal Part, Bergen County, PG #5020050.

Jane M. Personette argued the cause for appellant B.A. (Law Office of Brian J. Neary, attorneys; Brian J. Neary, of counsel; Ms. Personette, on the brief).

Vered Adoni, Assistant Prosecutor, argued the cause for respondent State of New Jersey (John L. Molinelli, Bergen County Prosecutor, attorney; John J. Scaliti, Assistant Prosecutor, on the brief).

PER CURIAM

In these consolidated appeals, B.A. appeals from an order denying his motion to withdraw his guilty plea and an order denying his motion to be relieved of registration requirements under Megan's Law. See N.J.S.A. 2C:7-2 to -5.

Factually, B.A., who was fifteen years old and a high school student, was babysitting a friend's six-year old daughter on April 19, 2005. He asked her to touch his penis by hand and by mouth, and he also rubbed his penis against her buttocks over her pants. He was charged with first-degree sexual assault and second-degree endangering the welfare of a child. Under a plea agreement, he pled guilty on August 23, 2005, to the second-degree crime in exchange for dismissal of the first-degree crime and was sentenced on September 20, 2005, to two years probation. He successfully completed probation.

During his plea hearing, he admitted his guilt and was advised of the requirements of Megan's Law. He was specifically informed of the requirements of Megan's Law that called for registration for fifteen years, that it would constitute a fourth degree crime if he moved and did not notify the county prosecutor, and that he had to provide a DNA sample which would be kept by the State Police in a DNA database. He was also advised that the extent of community notification would depend on the tier classification to which he would be assigned. He acknowledged that he understood each of these requirements and tier classification. He was told that he would be exposed to Megan's Law for fifteen years.

Following the State's questioning regarding Megan's Law conditions, defense counsel addressed the court regarding B.A.'s eligibility to be relieved of Megan's Law registration when he turned eighteen years of age. The trial court stated that B.A. could seek relief at age eighteen, believing there was case law to that effect. The court did not indicate that he would automatically be granted relief from the requirements of Megan's Law. The State expressed no view on the subject during this colloquy.

Following this, defense counsel noted that the family was planning to relocate to Florida because they were not able to afford to live in this area. The move to Florida was also elaborated upon at the time of sentencing to ascertain if it would pose any problem to the court in terms of probation supervision. The court responded that it would not be a barrier to probation supervision.

The court, the defense attorney, and by silence, the assistant prosecutor, were unaware of the fact that B.A. was not eligible to apply for relief from Megan's Law registration requirements when he turned eighteen unless he was under fourteen years of age at the time of the commission of the offense. B.A. asserts that he relied upon this mistaken impression of what was required under Megan's Law in seeking to withdraw his guilty plea, arguing that it materially influenced him to enter a guilty plea.

In denying B.A.'s motion to withdraw his guilty plea, the trial court, based on the transcript of the plea, indicated that B.A. had knowledge of the consequences of his plea and voluntarily entered into the agreement. In the colloquy with defense counsel, the judge rejected the notion that the inaccuracy on the judge's part, which was "my mistake," had nothing to do with the plea withdrawal and would not consider the argument.

In denying B.A. any relief from the Megan's Law registration requirement, Judge Harry G. Carroll, who did not take defendant's plea, determined that the Supreme Court in In re Registrant J.G., 169 N.J. 304 (2001), held that juveniles adjudicated delinquent for sexual offenses committed under the age of fourteen were eligible to terminate Megan's Law registration and community notification orders if the Law Division, following a hearing, determines by clear and convincing evidence that the delinquent is not likely to pose a threat to the safety of others. Id. at 337. Without discussing whether B.A. made a showing to be relieved from Megan's Law registration requirements, the court held that B.A. was not qualified to seek termination at age eighteen because he was fifteen years old when the crime was committed. As a consequence, the court did not find it necessary to reach the merits of the application.

On appeal, B.A. raises the following issues for our consideration:

Point I

B.A.'s guilty plea was NOT made voluntarily, knowingly, and intelligently and, accordingly, the court below erred in denying B.A.'s request to withdraw his guilty plea.

Point II

B.A. has been prejudiced by misinformation that materially influenced his decision to plead guilty. Accordingly, he should be permitted to withdraw his guilty plea.

Point III

B.A. is entitled to relief from the Megan's Law registration requirements.

We need not dwell on B.A.'s argument in Point III, where he contends he is entitled to relief from Megan's Law registration requirements. We agree with Judge Carroll that in In re Registrant J.G., supra, 169 N.J. at 337, the Supreme Court made it indelibly clear that eligibility to seek relief from Megan's Law registration may only be sought by those adjudicated delinquents who are under the age of fourteen at the time of their commission of the crimes. Even then, those delinquents must establish by clear and convincing evidence that the delinquent was not likely to pose a threat to the safety of others. Ibid. That standard is controlling here. B.A. is ineligible to apply for relief from Megan's Law registration requirements. We, therefore, affirm the order denying B.A. relief.

In connection with Points I and II, B.A. contends that he entered his guilty plea believing that he would be eligible to apply for relief from Megan's Law registration requirements when he became eighteen years old. This belief was fortified by the colloquy between the trial court and his then-counsel. The State made no objection or comment. As a consequence, he reasonably anticipated that he could petition for relief when he turned eighteen. B.A. did all he could to succeed in being relieved of Megan's Law registration requirements by successfully completing his probation. Other supporting documents attest to the progress he has made and the insight he has gained in the ensuing years.

We need not dwell on B.A.'s contentions because the trial court did not even consider the mistaken impression conveyed to B.A. at the time he entered his plea. The record is clear, as conveyed by the trial court, that he was eligible to apply for relief from Megan's Law when he turned eighteen as an adjudicated juvenile. The court was obviously mistaken about the age limitation as set forth by In re Registrant J.G., supra, 169 N.J. at 337.

We also recognize that the court's decision in denying the withdrawal of B.A.'s guilty plea was brief and did not consider all of the factors that must be taken into account in deciding whether such an application should or should not be granted.

Moreover, we are in no position, based on this record, to determine whether the misinformation provided at the time of the plea was material in terms of B.A. entering his plea. We have acknowledged that community supervision is considered a direct and penal consequence of a plea, State v J.J., 397 N.J. Super. 91, 99 (App. Div. 2007), certif. granted, 194 N.J. 446, appeal dismissed, 196 N.J. 459 (2008). There, we were concerned with defendant not being notified that community supervision could prevent him from moving in with his new wife and her child. While ramifications of the Megan's Law requirements were discussed and understood by B.A. on the record at the plea, the misinformation concerning his eligibility to terminate the Megan's Law registration at age eighteen was incorrect. Ibid. While there was no guarantee he would be relieved of the registration requirements, he was unequivocally informed that he could seek to be relieved.

On remand, the trial court will have to hold a hearing to explore the issue of the materiality of this misimpression to determine whether a plea withdrawal is appropriate. See State v Johnson, 182 N.J. 232, 241 (2005) (permitting plea withdrawal where defendant was unaware of period of extended parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2); State v Kiett, 121 N.J. 483, 499 (1990) (allowing withdrawal where a juvenile mistakenly believed he faced the death penalty and entered a guilty plea to avoid its imposition); State v Howard, 110 N.J. 113, 118-24 (1988) (allowing withdrawal where defendant was not informed of parole eligibility implications of sentence to adult diagnostic and treatment center); State v Nichols, 71 N.J. 358, 361 (1976) (permitting withdrawal where the court and prosecutor misinformed defendant about a material element of plea negotiation, which defendant relied upon in entering his plea).

The materiality issue is a factor which explains the reason for B.A.'s application to withdraw his plea. However, that is not the only factor to be considered on such an application. In State v Slater, 198 N.J. 145 (2009), our Supreme Court set forth the factors that trial judges must consider and balance in evaluating a motion to withdraw a guilty plea. They are:

(1) whether the defendant has asserted a credible 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 157-58.]

Since this application is made post-sentence, the standard under Rule 3:21-1 that must be satisfied by B.A. is that of "manifest injustice." Id. at 158.

We understand that the trial judge who took the plea and decided the plea withdrawal application has retired. Therefore, it would be necessary to have this matter assigned to another judge. We express no opinion on the merits of the application for plea withdrawal.

 
We affirm the order denying the motion to be relieved of Megan's Law registration requirement. We reverse the order denying B.A.'s plea withdrawal motion and remand for a hearing and decision on the plea withdrawal application. We do not retain jurisdiction.

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9

A-0109-08T1

RECORD IMPOUNDED

December 16, 2009