STATE OF NEW JERSEY v. MICHAEL NATHMAN

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0488-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MICHAEL NATHMAN,

     Defendant-Appellant.
_______________________________

              Argued December 12, 2017 – Decided March 22, 2018

              Before Judges Fisher, Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Hunterdon County, Accusation No.
              16-03-0119.

              Paul E. Zager argued the cause for appellant
              (Palumbo, Renaud & De Appolonio, attorneys;
              Jeff Thakker, of counsel; Anthony N. Palumbo,
              on the brief).

              Jeffrey L. Weinstein, Assistant Prosecutor,
              argued the cause for respondent (Anthony P.
              Kearns, III, Hunterdon County Prosecutor,
              attorney; Jeffrey L. Weinstein, of counsel and
              on the brief).

PER CURIAM
     Defendant    Michael   Nathman   appeals   from   a   judgment    of

conviction following his waiver of indictment and guilty plea to

a three-count accusation charging first-degree aggravated sexual

assault, 
N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual

assault, 
N.J.S.A. 2C:14-2(c)(4) (count two); and fourth-degree

criminal sexual contact, 
N.J.S.A. 2C:14-3(b) (count three); each

of the counts involved separate victims, all under the age of

seventeen.1     Defendant was sentenced on count one to a fifteen-

year State prison sentence without parole eligibility, concurrent

to five-year and eighteen-month terms on counts two and three,

respectively.     Pursuant to the plea agreement,2 the State waived

the provisions of 
N.J.S.A. 2C:14-2(a) – which mandates a sentence

between twenty-five years and life imprisonment with, at least

twenty-five years of parole ineligibility – and recommended the

fifteen-year term pursuant to 
N.J.S.A. 2C:14-2(d) which provides:

          Notwithstanding the provisions of subsection
          a. of this section, where a defendant is
          charged with a violation under paragraph (1)
          of subsection a. of this section, the
          prosecutor, in consideration of the interests
          of the victim, may offer a negotiated plea
          agreement in which the defendant would be

1
  The victims' ages were twelve (count one), fourteen (count two)
and sixteen (count three).
2
 Defendant did not provide the plea form in his appendix, claiming
it was "not sufficiently legible." We rely on State's submission
of the plea form in its appendix as well as the trial court's
review of the plea form on March 29, 2016.

                                  2                             A-0488-16T3
         sentenced to a specific term of imprisonment
         of not less than [fifteen] years, during which
         the defendant shall not be eligible for
         parole. In such event, the court may accept
         the negotiated plea agreement and upon such
         conviction   shall    impose   the   term   of
         imprisonment     and    period    of    parole
         ineligibility as provided for in the plea
         agreement, and may not impose a lesser term
         of imprisonment or parole or a lesser period
         of parole ineligibility than that expressly
         provided in the plea agreement. The Attorney
         General shall develop guidelines to ensure the
         uniform exercise of discretion in making
         determinations     regarding   a    negotiated
         reduction in the term of imprisonment and
         period of parole ineligibility set forth in
         subsection a. of this section.

Defendant contends:

         [POINT I]

         [DEFENDANT'S] PLEA UNDER 
N.J.S.A. 2C:14-2 WAS
         ACCOMPANIED BY A CONTENTION THAT THE STATUTE
         IS INVALID; HE HAS PRESERVED HIS ARGUMENT FOR
         PURPOSES OF THE WITHIN APPEAL.

         [POINT II]

         
N.J.S.A. 2C:14-2 IS UNCONSTITUTIONAL AND
         OTHERWISE INVALID, THEREBY NECESSITATING THE
         VACATION OF [DEFENDANT'S] CONVICTION.

         A.   
N.J.S.A. 2C:14-2 IS INVALID, AS THE
         LEGISLATURE IS UNCONSTITUTIONALLY INTERFERING
         WITH   PROSECUTORIAL   DISCRETION   IN   PLEA
         BARGAINING.

         B.   
N.J.S.A. 2C:14-2 IS INVALID AS AN
         UNCONSTITUTIONAL INTRUSION UPON JUDICIAL
         INDEPENDENCE.




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          C.   THE EFFECT OF 
N.J.S.A. 2C:14-2(d) IS TO
          COMPROMISE EFFECTIVE ASSISTANCE OF COUNSEL IN
          PLEA NEGOTIATIONS IN PROSECUTIONS UNDER
          
N.J.S.A. 2C:14-2(a).

          D.   
N.J.S.A. 2C:14-2(d) IS INVALID AS IT
          DEPRIVES DEFENDANTS OF THE RIGHT TO ALLOCUTE.

          E.   
N.J.S.A. 2C:14-2 IS INVALID, AS THE
          SENTENCE -- AND, MORE PARTICULARLY, THE
          SENTENCING -- CONSTITUTES CRUEL AND UNUSUAL
          PUNISHMENT.

          F.   EVEN   IF   
N.J.S.A.   2C:14-2(d)    WERE
          OTHERWISE VALID, THE PROSECUTOR DID NOT FOLLOW
          ANY KNOWN GUIDELINES.

We decline to address these issues because they were not preserved

for appeal.

     As conceded in defendant's merits brief, he did not raise the

arguments set forth in Point I and Points II (A), (B), (C), (D)

and (F) to the trial court.   Defendant orally raised the cruel and

unusual punishment issue (Point II (E)) during a colloquy with the

judge during sentencing proceedings:

               [DEFENSE COUNSEL:] This is a mandatory
          sentence. This is not a sentence where this
          court has discretion to give him less than
          what's been agreed upon, the statutory
          [fifteen] years with no parole.

               I question the constitutionality of that
          in my own mind as to whether in fact that
          might be cruel and unusual punishment.     And
          in thinking about it, Judge, the reason I'm
          thinking it is that . . . I've defended people
          involved with murders and manslaughters and
          rapes and kidnappings and a lot of other
          things where judges in cases such as that had

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          some discretion to do some things. But you
          don't. You don't have discretion because of
          the statute to do less than the [fifteen]
          years.

               THE COURT: Well, I would have if he was
          sentenced to [twenty-five] to life.

               [DEFENSE COUNSEL]: Exactly. But that's
          not what the plea was, the plea is the
          [fifteen] years.

               THE COURT: And he agreed to that.

               [DEFENSE COUNSEL]: And he agreed to that.
          I ask the [c]ourt to go along with the plea
          recommendation.

     Defendant never filed a motion challenging the statute, nor

is there any record he gave notice of his challenge to the State

or supported his argument with a brief.   Defense counsel's passing

comment on the constitutionality of the statute – which the State,

understandably, did not address – prompted only the judge's brief

comment, "There is no issue regarding constitutionality in this

[c]ourt's mind regarding a mandatory [fifteen]-year parole . . .

ineligibility term."

     Rule 3:9-3(f) provides in pertinent part:

          With the approval of the court and the consent
          of the prosecuting attorney, a defendant may
          enter a conditional plea of guilty reserving
          on the record the right to appeal from the
          adverse   determination   of   any   specified
          pretrial motion.   If the defendant prevails
          on appeal, the defendant shall be afforded the
          opportunity to withdraw his or her plea.


                                5                           A-0488-16T3
Except   for     three    exceptions       inapplicable   to   this     case,

"[g]enerally, a guilty plea constitutes a waiver of all issues

which were or could have been addressed by the trial judge before

[a] guilty plea."     State v. Robinson, 
224 N.J. Super. 495, 498-99

(App. Div. 1988).        "[F]ailure to enter a conditional plea . . .

bars appellate review," even of constitutional issues.            State v.

J.M., 
182 N.J. 402, 410 (2005) (citing Robinson, 
224 N.J. Super.

at 503-04).

     Contrary to defendant's contention that this issue could not

have been raised prior to sentencing, this is a statutory – not a

sentencing – issue.       This is not a case where the consequences of

the sentencing statute were not known or knowable by defendant

prior to sentencing.      We find inapposite State v. Peters, 
129 N.J.
 210 (1992), and State v. Vasquez, 
129 N.J. 189 (1992), where the

Court held a defendant did not "waive the right to appeal the

prosecutor's attempt to apply the parole ineligibility term [as

set forth in N.J.S.A. 2C:35-7] on violation of his probation"

after the State had initially waived the parole ineligibility term

when it agreed to a probationary sentence.           Vasquez, 
129 N.J. at
 192, 195.      See also Peter, 
129 N.J. at 216-17, 220.          The Court

concluded

            the appeal concerned sentencing after a
            violation of probation, and the plea did not
            amount to a waiver of the defendant's right

                                       6                              A-0488-16T3
          to appeal the issues addressed to that future
          proceeding. . . . Otherwise[,] a defendant
          would have to raise issues concerning a
          sentence that had not yet been imposed for a
          violation [of probation] that had not yet
          occurred and might never occur.          That
          procedure would be akin to raising a claim
          that was not yet ripe for judicial review.

          [Vasquez, 
129 N.J. at 194 (emphasis added)
          (citations omitted).]

     Here,    the   judge   thoroughly   reviewed   with   defendant   the

sentencing provisions under 
N.J.S.A. 2C:14-2(a) and (d) during the

plea colloquy; defendant said he understood all that the judge

reviewed, had reviewed the consequences of his plea with his

counsel, had all his questions answered and still wished to plead

guilty.   He knew, at the latest, on March 29, 2016 – the date of

the plea – of the mandatory provisions of 
N.J.S.A. 2C:14-2 and of

the proscription against the judge imposing a lesser sentence; he

could have filed a motion at any time prior to the August 12, 2016

sentencing.

     He neither filed a motion nor preserved his right to challenge

the statute's constitutionality.         The plea forms3 reflect that

defendant did not preserve the right to appeal "the denial of



3 Question 4(e) of the plea form provides: "Do you further
understand that by pleading guilty you are waiving your right to
appeal the denial of all other pretrial motions [other than those
preserved by Rule 3:5-7(d) or Rule 3:28(g)] except the following";
the lines that followed on defendant's plea form were blank, and
the accompanying "yes" was circled.

                                    7                             A-0488-16T3
[any] pretrial motions"; indeed, no motions related to the present

argument   were      filed.     Defense        counsel's   comments    during   the

sentencing proceedings were insufficient to reserve defendant's

appeal rights.       See State v. Davila, 
443 N.J. Super. 577, 583, 586

(App.   Div.   2016)    (deeming     defense      counsel's    "casual   mention"

during the plea hearing of "'all of the motions' that had been

decided by the judge and were listed in his plea form" insufficient

to satisfy the requirements of Rule 3:9-3(f)).

     The   applicability        of   the    waiver    provision   is   especially

important because the State, in deciding to offer the reduced

sentence pursuant to section (d), must consider the interests of

the victim.       One of those interests is the closure implicitly

promised in allowing the State to extend plea offers that deviate

from the much harsher sentences required under section (a).                      See

State v. Smullen, 
118 N.J. 408, 418 (1990) (recognizing "child-

sexual-assault       cases    are    extremely       difficult,   both   for    the

defendants     and    the     victims      [and   c]ourts     taking   pleas    are

undoubtedly conscious of the need to end the suffering").                       That

consideration is meaningless if a defendant initially accepts a

plea offer and later – without any notice to the State – challenges

the very statute under which the reduced plea was offered.

     In light of defendant's failure to enter a conditional plea

pursuant to Rule 3:9-3(f) – or to even properly raise that issue

                                           8                               A-0488-16T3
to the trial court – we will not consider his challenge to the

statute.

    Dismissed.




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