STATE OF NEW JERSEY v. A.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.M.,

Defendant-Appellant.

____________________________

May 30, 2014

Submitted March 19, 2014 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-09-1547.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth Rebein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant A.M. appeals a conviction and a $2000 penalty payable to the "Sex Crime Victim Treatment Fund" (SCVTF), N.J.S.A. 2C:14-10a(2), imposed as a consequence of his guilty plea to two counts of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(1). He raises two issues on appeal:

I. THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S PRE-SENTENCING MOTION TO WITHDRAW FROM HIS GUILTY PLEA.

II. THE COURT ERRED IN IMPOSING $2000 IN

SEX CRIME VICTIM TREATMENT FUND FINES WITHOUT CONSIDERING [HIS] ABILITY TO PAY THAT ASSESSMENT. (Not Raised Below).

We affirm the denial of the guilty plea and remand for reconsideration of the $2000 penalty.

I

Discussion of defendant's objections to the denial of the motion to withdraw requires an understanding of the procedural history related to defendant's prior conviction on other charges included in the same indictment as well as the plea proceeding at issue here. The grand jurors for Bergen County charged defendant in a thirty-count indictment involving sexual conduct on separate occasions with one eight year old and two teenage girls. On defendant's motion, the charges involving the eight year old counts one through five were severed for trial, and a jury found defendant guilty on all five counts. On those counts, defendant was sentenced to an aggregate term of eighteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On defendant's direct appeal we affirmed his convictions but remanded for correction of the judgment of conviction. State v. A.M., No. A-4025-09 (App. Div. Jul. 27, 2011).

While his appeal from the judgment entered following the trial on counts one through five was pending, defendant entered this guilty plea to counts eight and twenty-six as previously noted, second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(1) one count for each teenager. Defendant entered the guilty plea on March 28, 2011, which was the date trial was scheduled on the counts charging crimes against the teenagers.

The plea was entered pursuant to an agreement with the State. The State agreed to dismiss the remaining charges involving the teenagers and to recommend the minimum sentences, five-year terms of imprisonment subject to NERA, for each second-degree attempted sexual assault charge. The State further agreed to recommend that the five-year sentences run consecutive to one another but concurrent with the eighteen-year term previously imposed as a consequence of defendant's convictions on counts one through five.

The relationship between defendant's prior sentence and the outcome of defendant's pending appeal was addressed on the record and in an addendum to the plea agreement. The addendum recognizes that the sentences imposed as a consequence of the plea will be concurrent with the eighteen-year term, which was then on appeal. In the addendum, defendant acknowledges his understanding of the following: the sentences imposed as a consequence of the plea would remain in effect if the convictions pending appeal were to be vacated; his guilty plea would not be affected by the outcome of the appeal; a reversal of the convictions on counts one through five could require resolution of the underlying charges by plea or re-trial; and in the event of a re-trial or plea, the sentences imposed on counts one through five could be concurrent or consecutive with the ten-year sentence imposed as a consequence of his plea. Before accepting defendant's guilty plea, the judge asked defendant if he had enough time to speak with his attorney about the plea agreement and was satisfied with his attorney's services. Defendant said he did and he was.

Following a thorough discussion of the addendum to the plea and all of the direct and collateral consequences of these convictions for second-degree attempted sexual assault, defense counsel questioned defendant to provide a factual basis for the plea. That factual basis was set forth in a written stipulation, which defendant, his attorney and the prosecutor had signed prior to the hearing. Defendant acknowledged that defense counsel had given him and that he had read the stipulation, and he confirmed that defense counsel had answered any questions he had about the stipulation. Defendant then said he agreed with the facts set forth in each of the stipulations.

The judge followed up. Noting that the parties and defendant "agreed on [the] grim stipulation of detailed facts about each victim," he asked defendant if he "had enough time to review that stipulation before signing it[,]" and defendant said he had. The judge then asked defendant if he signed the stipulation knowingly and voluntarily, and defendant said he had. Defendant further advised that no one had forced him to sign the stipulation.

The stipulation provided the following detailed information about the attempted sexual assaults:

Pursuant to Rule 3:9-2, I submit to the [c]ourt the following facts that form the basis of my guilty plea today. I have reviewed all the discovery in these matters and I have thoroughly discussed all matters relating to my plea with my attorney . . . .

The following statements are true and accurate and are further supported by the statements of R.V. and L.L. and form the basis of my guilty plea:

1. As to Count 8 . . . on or about during and between February 1, 2008 and March 31, 2008 . . . I . . . attempted to force R.V. . . . to perform fellatio upon me. At some point during the above time-frame, R.V. came to my home for a visit. At some point in time, I was alone in the basement with R.V. During this time, I exposed my penis to her and told her to perform fellatio upon me, when she refused I repeated my demand and forcibly placed her hand on my penis and made her rub it; it was my intention to have her perform fellatio upon me. All of my actions were contrary to the provisions of N.J.S.A. 2C:5-1 [and N.J.S.A.] 2C:14-2c(1).

2. As to Count 26 . . . on or about October 12, 2007 . . . I . . . attempted to digitally penetrate the vagina of L.L.

. . . by force. L.L. came to my home for a visit. It was my birthday and at some point I was alone with L.L. in the kitchen. I started rubbing her body with my hands, both over and under her clothes, and eventually placed my fingers under the waistband of her pants; it was my intention to penetrate her vagina with my fingers. L.L. pushed me away and I stopped. . . .

I certify under penalty of law that I make these statements freely and without threat or intimidation, and because these statements are true and accurate. Additionally, I understand and agree to all the parameters of this plea agreement as set forth above and in my plea forms.

Although defendant entered the foregoing guilty plea on March 28, 2011, the judge did not impose a sentence until a year later. The judge who accepted the plea had accommodated defendant's request to postpone sentencing until his appeal was resolved and his subsequent efforts to renegotiate the sentencing agreement were completed. Consequently, the sentencing proceeding was conducted on April 2, 2012.

At the outset of the sentencing proceeding, the judge heard argument on a motion to withdraw the guilty plea that defendant filed in March 2012.1 In a certification submitted in support of the motion to withdraw, defendant asserted that he was "not guilty of these crimes" and had "never molested anyone."

The only explanation defendant gave for acknowledging the accuracy of the statements in the stipulation of facts at the time of his plea focused on his attorney's performance: 1) defendant had only one video conference with the attorney assigned to represent him before the trial date on the counts involving crimes against the teenagers, March 28, 2011; 2) defendant's attorney had never discussed discovery with him, had done no investigation, had failed to interview witnesses, had not filed a motion to sever and told defendant he had no choice but to take the plea because "the deck was stacked against" him; 3) defendant, himself, was "nervous and upset" because his attorney was unprepared and a trial would have been a farce; and 4) defendant felt he had no representation at all.

The judge who heard defendant's motion to withdraw his guilty plea was not new to the case. He presided over defendant's trial on counts one through five, the pre-trial conferences that followed on the remaining charges, the plea proceeding and the motion to withdraw. After allowing defendant to testify in support of his motion and reciting the procedural history and discussing the many conferences that were attended by defendant and his attorney prior to the plea, the judge found that defendant fully understood the case against him and that defendant's claims to the contrary and his assertions about his attorney had "no credibility" and were "just not believable."

Defendant does not argue that the judge accepted this plea without following the essential procedures mandated by Rule 3:9-2. His argument is limited to the judge's balancing of the four pertinent factors the Supreme Court identified in State v. Slater, 198 N.J. 145 (2009). The Slater factors are: "(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." 198 N.J. at 157-58. None of these factors is determinative. Id. at 162.

Recognizing that defendant's pre-sentence motion to withdraw his plea should only be granted on a showing that the "interests of justice would not be served by effectuating the agreement," R. 3:9-3(e), the judge denied the motion. The judge found that: defendant's bare denial of guilt did not qualify as a colorable claim of innocence, Slater, supra, 198 N.J. at 158; defendant's testimony asserting reasons for withdrawal was not believable, id. at 159-60; the plea was entered pursuant to a detailed agreement with the State, which added to the weight of defendant's burden of proof that enforcement would be unjust, id. at 161-62; and pertinent to prejudice, the judge noted that the charges had been pending since 2008 and the child victims had grown up and the State had a right to closure, id. at 161-62. Balancing those factors, he concluded that the interests of justice would not be served by vacating this plea.

Motions to withdraw require an exercise of the judge's discretion in conformity with the law. Slater, supra, 198 N.J. at 156. And a judge's ruling on such a motion is reviewable for mistaken exercise of that discretion a "clear error of judgment." State v. Munroe, 210 N.J. 429, 448 (2012) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)). Having considered the record and the arguments presented, we conclude that the judge's denial of this motion was a proper exercise of his discretion based on facts and credibility determinations well-supported by the record and a proper application of the law. Accordingly, we affirm and do so substantially for the reasons the judge stated in his oral opinion of April 2, 2012.

II

We turn to consider defendant's objection to the imposition of the aggregate penalty of $2000 payable to the SCVTF pursuant to N.J.S.A. 2C:14-10a(2), which requires a judge imposing a sentence for a second-degree sexual offense to assess a penalty "not to exceed" $1000 for each second-degree offense. After this sentence was imposed the Supreme Court held:

[T]he SCVTF penalty is mandatory in cases in which a defendant is convicted of a sexual offense identified in the statute. We further hold that a sentencing court may impose an SCVTF penalty against a defendant in any amount between a nominal figure and the upper limit prescribed by N.J.S.A. 2C:14 10(a) for the degree of the offense at issue. In setting an SCVTF penalty, the sentencing court should consider the nature of the offense, as well as the defendant's ability to pay the penalty during any custodial sentence imposed and after his or her release. We further hold that the sentencing court should provide a statement of reasons as to the amount of any penalty imposed pursuant to N.J.S.A. 2C:14 10(a).

[State v. Bolvito, 217 N.J. 221, 224 (2014).]

Because the maximum penalties were imposed in this case and the judge did not make the findings mandated by the Court in Bolvito, we remand for reconsideration of the SCVTF penalties in conformity with Bolvito.

Affirmed in part and remanded for reconsideration of the SCVTF penalties.

1 The copy of the motion provided on appeal does not reflect the filing date, but the letter brief submitted in support of the motion is dated March 20, 2012.