On appeal from the Superior Court, Law Division, Mercer County.
Matthews, Morton I. Greenberg and Coleman. The opinion of the court was delivered by Matthews, P.J.A.D.
This appeal raises two issues: (1) whether N.J.S.A. 2C:44-1(e), which establishes a presumption of nonimprisonment for first-time offenders convicted of an offense other than a crime of the first or second degree, applies to a first-time offender who pleads guilty to a crime of the second degree but is sentenced pursuant to N.J.S.A. 2C:44-1(f)(2) as if he committed a crime of the third degree; and (2) if not, whether defense counsel's erroneous advice that defendant, if sentenced pursuant to N.J.S.A. 2C:44-1(f)(2), would most likely receive a noncustodial sentence, vitiates an otherwise valid guilty plea.
In November 1979 defendant was charged in Mercer County with one count of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(5), and one count of sexual assault, in violation of N.J.S.A. 2C:14-2(c)(5).
On March 3, 1980 defendant appeared before a Law Division judge for the purpose of entering a retraxit plea of guilty to the sexual assault charge pursuant to a plea agreement under which the State agreed to dismiss the charge of aggravated sexual assault and to make no recommendation as to sentence, other than an agreement not to take an appeal if defendant were sentenced for a third degree crime pursuant to N.J.S.A. 2C:44-1(f)(2). At the time the plea was entered, the judge questioned defendant regarding his understanding of the penal consequences of the plea:
THE COURT: And do you also understand that by pleading guilty, you are enabling the Court to sentence you up to the maximum prescribed by law? The maximum would be ten years and/or a $100,000 fine or both.
THE DEFENDANT: I understand.
THE COURT: Has any specific promise been made to you as to what the sentence might be?
THE DEFENDANT: Not really.
THE COURT: And the prosecutor has indicated that if I felt it could be reduced from a second degree crime to a third degree crime -- in other words, from a ten-year sentence to a five-year sentence, that they would not appeal that decision; is that your understanding?
Defendant, then age 28, admitted at the time of the plea to having intercourse with the victim, age 13, but asserted that she had asked him to have intercourse with her; defendant also stated that he did not know her age ...