On appeal from Superior Court, Law Division, Ocean County.
Matthews, Ard and Polow. The opinion of the court was delivered by Matthews, P.J.A.D.
[175 NJSuper Page 133] Ocean County Indictment 363-78 charged defendant Davis with murder (N.J.S.A. 2A:113-1 and 2A:113-2) (count I); rape (N.J.S.A. 2A:138-1) (count II); robbery (N.J.S.A. 2A:141-1) (count III) and with committing all of those acts while armed with an offensive weapon (N.J.S.A. 2A:151-5) (count IV).
On August 15, 1979, following plea negotiations, defendant agreed to enter a retraxit plea of non vult to count I of the indictment charging him with murder. In return for defendant's plea the prosecutor agreed to dismiss the remaining three counts of the indictment. In addition, defendant requested that he be sentenced pursuant to the provisions of the new Criminal Code, as provided in N.J.S.A. 2C:1-1 c(2) effective September 1, 1979. N.J.S.A. 2C:1-1 c(2) provides that the sentencing judge, with the consent of defendant, may in any case pending on or initiated after the effective date of the Code involving an offense committed prior to the effective date, impose sentence under the provisions of the Code. The agreement provided that pursuant to N.J.S.A. 2C:11-3 b defendant could receive, as sentence for the murder, a crime of the first degree, either (1) a term of 30 years, of which the person must serve 15 years before being eligible for parole, or (2) as in a crime of the first degree except that the maximum term for such crime of the first degree shall be 30 years. N.J.S.A. 2C:11-3 b. That statute also provides that a person may be sentenced according to its provisions notwithstanding the provisions of N.J.S.A. 2C:44-1 f (presumptive sentences) which provide a custodial term of 15 years for a crime of the first degree except for murder or kidnapping.
After determining that the plea was knowing and voluntary, and that there was a factual basis for it, Judge Addison accepted defendant's plea of non vult. The judge stated that defendant had been represented by competent counsel, had had the indictment explained to him and understood both the nature of the charge and the maximum penalties permitted by law and had entered his plea voluntarily.
On September 21, 1979 defendant was sentenced to the New Jersey State Prison for a term of 30 years, of which 15 years must be served before becoming eligible for parole. Pursuant to R. 3:21-4(e), which requires the court to state its reasons for imposing such sentence, the final judgment of conviction stated that the nature of the "crime, its manner of commission, the facts surrounding it, the nature of the wounds, its heinous nature, all demand that a lengthy term of imprisonment be
imposed." Judge Addison advised defendant he had the right to appeal the sentence. Counsel for defendant objected to defendant's sentence on the basis that the sentence imposed had not been agreed upon. The following colloquy took place between defense counsel and the judge:
MR. KIRBY: Just to clear the record, Your Honor. You indicate that we -- that the sentence that we agreed upon -- we did not agree upon that sentence. We agreed --
THE COURT: You agreed on the maximum.
MR. KIRBY: A maximum, but --
THE COURT: And that's what I've given him.
MR. KIRBY: Yes, sir, but we did not agree that that would be the Court's -- that I would consent to that.
THE COURT: That is correct.
THE COURT: That is correct. The plea bargain provided that the Court would not impose a sentence in excess of thirty years.
MR. KIRBY: That's correct.
THE COURT: But the other terms of the sentence were not bargained.
MR. KIRBY: That's correct.
Defendant and his victim were both employed at the Howard Johnson's Motel in Toms River. The victim worked at the front desk while defendant was employed as a cook and dishwasher. The circumstances of the event are somewhat unclear. The facts appear to indicate that on February 27, 1979, at about 5:15 a.m., defendant robbed the victim, then forced her to accompany him to an unoccupied room of the motel where he raped her. The State also suggests that after being raped, the victim attempted to escape from defendant and that he prevented her from leaving the room and stabbed her with a knife at least ten times in the chest, abdomen, leg and back. These wounds resulted in her death. The autopsy report reveals that abrasions around the victim's neck indicated that she was also strangled. At the plea hearing, defendant indicated he did not recall how many times he had stabbed the victim but he did admit that his actions resulted in his victim's death. Defendant was unable to explain why he had committed murder but the circumstances seem to indicate a total loss of control at the time.
Later that day defendant was apprehended at the motel after the police, who had been notified of the victim's disappearance,
had conducted a preliminary investigation which included questioning defendant. Several hours later defendant confessed to the crime.
Although he admits murdering her, defendant denies having either robbed or raped his victim. He claims that she voluntarily accompanied him to the unoccupied motel room where they engaged in sexual intercourse. He further alleged that, after having sex, she attempted to leave the room without her clothes. Defendant said he prevented for from leaving because he feared he would lose his job. He claimed that his victim then pulled a knife on him (apparently from her unclothed body) which he was able to take from her. Then, for some inexplicable reason, defendant stabbed his victim, causing her death.
Defendant's account of the incident was undermined by the fact that money which was found to be missing from the front cash register was later found on his person, strongly suggesting that robbery was involved. In addition, the number of bruises found on the victim's face and body strongly indicated that the sexual activity between the victim and defendant was not voluntary.
Defendant maintains that he cooperated fully with the authorities although he did not voluntarily surrender, and admitted he committed the crime only after police investigation. At sentencing defendant explained that he entered a plea of non vult because he did not wish to subject the victim's family or himself to a trial. ...