STATE OF NEW JERSEY v. R.V.

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NOT FOR PUBLICATION WITHOUT THE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.

R.V.,

Defendant-Appellant.

August 11, 2014

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-06-1126.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant R.V. appeals from the September 14, 2012 judgment of conviction for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Defendant contends the trial judge erred in denying his pre-sentence motion to withdraw his plea. He also appeals his sentence, which he contends was excessive. We remand for further proceedings with respect to one aspect of defendant's sentence, but otherwise affirm.

I.

We discern the following facts from the record on appeal. On June 15, 2011, a Bergen County grand jury returned an indictment charging defendant with two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts one and two), and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). The offenses charged in the indictment were alleged to have occurred during the summer of 2006 between defendant, then forty-four years old, and a twelve-year-old female, K.H.

On April 13, 2012, defendant pled guilty to third-degree endangering the welfare of a child. Pursuant to a plea agreement, the State recommended a three-year suspended sentence, dismissal of the remaining charges, and parole supervision for life (PSL), pursuant to Megan's Law, N.J.S.A. 2C:7-2 to -11, which included no contact with the victim, and an Avenel evaluation requirement.

At the plea hearing, defendant testified that he: had ample time to confer with his attorney, was "absolutely" satisfied with his attorney's services, understood the consequences of his plea, was doing so voluntarily, and was pleading guilty because he was in fact guilty. The following colloquy also occurred between defendant and his attorney:

Q. . . . between June 21st, 2006 and August 22nd, 2006 were you in the Borough of East Rutherford, County of Bergen?

A. Yes.

Q. At that time between those dates were you alone with K.H. at some point between those dates?

A. Yes.

Q. When you were alone with K.H. did you in fact touch her breasts and vagina?

A. Yes.

Q. You did this for sexual gratification?

A. Yes.

Q. And K.H. you knew was under the age of sixteen at the time?

A. Yes.

Q. And K.H.'s birthday is August . . . 1993?

A. Yes.

Q. Additionally, you knew that this conduct would impair or corrupt the morals of K.H.?

A. Yes.

On July 23, 2012, defendant filed a motion to withdraw his guilty plea. Defendant provided a supporting certification from his attorney explaining that defendant was moving to withdraw his guilty plea because defendant learned, after his plea hearing, that his conviction for a sex offense would prevent him from residing in the same household with his daughter, and her then seven-year-old daughter.

According to the motion record, defendant's daughter and granddaughter had been living with him and he had been providing for them financially. At some point before the motion hearing, this living arrangement changed when defendant had to give up his apartment because his landlord needed it for a family member. During the hearing, defendant stated he "figured it [was] easier for my daughter and granddaughter to stay [with] my ex-wife until we could come back to court[,] before I went and got another apartment. Right now I [am] staying with a friend."

Defendant indicated a worker from the Division of Youth and Family Services (Division)1 had informed his daughter, following his guilty plea, that her daughter could be taken away from her if she continued to reside with defendant. Defendant claimed the Division told his daughter this would happen if defendant were convicted. Defendant said he would not be able to support his daughter and granddaughter if they were not permitted to reside with him.

Defendant also stated at the hearing that he regretted making the plea agreement because he was "innocent" and "didn't know all the factors involved with probation." Defendant had been interviewed by police on March 4, 2011, and denied the victim's allegations that he touched her breasts and vagina. Defendant also denied any wrongdoing during his Avenal evaluation on May 21, 2012. However, in his pre-sentence interview (PSI), following the April 2012 plea hearing, defendant explained the instant offense "was only touching though," and "he was sorry it took place and that it will never happen twice."

Defendant further said he pled guilty "under the direction of my attorney . . . [and] [i]f I was going to make a plea deal I had to admit to these charges." His attorney also argued that "only touching" was not an admission of guilt. The motion judge rejected this argument, noting this contradicted defendant's PSI statement and the sworn statement he gave at his plea hearing.

After finding defendant had failed to assert a colorable claim of innocence and satisfy the four-prong requirements of State v. Slater, 198 N.J. 145 (2009), for withdrawal of a guilty plea, the judge denied defendant's motion. The judge agreed that the Division only became involved because of defendant's guilty plea, but also noted that even if the plea were withdrawn, the Division would not simply stop pursuing the case. The judge then sentenced defendant, pursuant to his plea agreement, to three years in prison, suspended, "thereby placing him on parole." In addition to parole supervision for life, the judge also ordered defendant to pay a $50 Victims of Crime Compensation Board (VCCB) penalty; an $800 Statewide Sexual Assault Nurse Examiner Program penalty; a $75 Safe Neighborhood Services Fund assessment; a $30 Law Enforcement Officers Training and Equipment Fund penalty; and a $7502 penalty to the Sex Crime Victim Treatment Fund (SCVTF), N.J.S.A. 2C:14-10(a).

This appeal followed, with defendant raising the following arguments for our consideration:

POINT I:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PRE-SENTENCING MOTION TO WITHDRAW FROM HIS GUILTY PLEA.

POINT II:

THE COURT ERRED IN IMPOSING A $750.00 SEX CRIME VICTIM TREATMENT FUND FINE WITHOUT CONSIDERING [DEFENDANT'S] ABILITY TO PAY THAT ASSESSMENT. (NOT RAISED BELOW).

II.

The determination of whether to allow a defendant to withdraw a guilty plea lies within the sound discretion of the trial court, and will be reversed "only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999) (citing State v. Smullen, 118 N.J. 408, 416 (1990)). In all plea withdrawal cases, "the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." Slater, supra, 198 N.J. at 156 (quoting Smullen, supra, 118 N.J. at 416). "Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." Simon, supra, 161 N.J. at 444 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977)).

A trial court must consider and balance four factors when evaluating a motion to withdraw a guilty plea: "(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." State v. Munroe, 210 N.J. 429, 442 (2012) (quoting Slater, supra, 198 N.J. at 157-58). "No single Slater factor is dispositive; 'if one is missing, that does not automatically disqualify or dictate relief.'" State v. McDonald, 211 N.J. 4, 16-17 (2012) (quoting Slater, supra, 198 N.J. at 162).

With respect to the first factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Slater, supra, 198 N.J. at 158. Instead, a defendant must "present specific, credible facts and, where possible, point to facts in the record that buttress [his or her] claim." Ibid. There must be more than just a "change of heart" to warrant leave to withdraw a guilty plea once entered. Id. at 157.

According to Slater, the second factor, the nature and strength of defendant's reasons for withdrawal, "focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159. Although we are not to approach the reasons for withdrawal with "skepticism," we "must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Id. at 160 (citing State v. Taylor, 80 N.J. 353, 365 (1979)).

With respect to the third Slater factor, whether the plea was entered as the result of a plea bargain, the Court noted that "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Id. at 160. However, the Court did "not suggest that this factor be given great weight in the balancing process." Id. at 161.

As to the fourth factor, unfair prejudice to the State or unfair advantage to the accused, the Court stated that there was "no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea" and that "courts must examine this factor by looking closely at the particulars of each case." Ibid. The "critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Ibid. The State need not show prejudice "if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Id. at 162.

We conclude the motion judge properly weighed the Slater factors. We find the judge correctly identified defendant's claims of innocence to be insufficient under the Slater standard. The judge properly evaluated the relevant facts to find no basis for a colorable claim of innocence, including defendant's voluntary, counseled guilty plea; his PSI statement admitting to "only touching," which defendant did not deny; and defendant's failure to provide any evidence of innocence beyond his own statements. The judge also correctly found that since his daughter was an adult, defendant was not legally responsible for supporting her; thus, the Division's action was a collateral consequence of the plea, and not a sufficient reason to permit defendant to withdraw it under the second prong of Slater. The judge also correctly noted that even if the plea were withdrawn, the Division would not simply close its case, making the main purpose of the withdrawal moot. Regarding prongs three and four, the court properly determined and weighed the factors of the existence of a plea agreement and the lack of unfair prejudice to the State.

Having balanced the Slater factors, we find no error in the judge's exercise of his discretion in denying the motion. We do not consider this the type of "close case" in which the balance should tip in favor of a defendant. Defendant made a counseled and knowing decision to plead guilty, his change of mind, absent viable support for his claim of innocence, did not warrant leave to withdraw his plea.

Finally, we consider defendant's objection to the imposition of the aggregate penalty of $750 payable to the SCVTF pursuant to N.J.S.A. 2C:14-10(a)(2), which requires a judge imposing a sentence for a third-degree sexual offense to assess a penalty "not to exceed" $750 for each third-degree offense. After this sentence was imposed our 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 penalty was 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 penalty in conformity with Bolvito.

Affirmed in part and remanded for reconsideration of the SCVTF penalty. We do not retain jurisdiction.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).

2 This represents the maximum penalty assessable for a third-degree offense sex offense. N.J.S.A. 2C:14-10(a)(3).