On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None.
[99 NJ Page 314] A Mercer County Grand Jury indicted defendant on seven counts of sex-related offenses involving two of his daughters that occurred between November 17, 1974 and March 11, 1981. As part of a plea bargain, he pled guilty to Count One, which charged incest with the older daughter between November 17, 1974 and August 31, 1979, contrary to N.J.S.A. 2A:114-2. He
also pled guilty to Count Three, which charged acts of sexual assault upon the same daughter between September 1, 1979, the effective date of the New Jersey Code of Criminal Justice, and March 11, 1981.
The offense charged in Count Three was a violation of N.J.S.A. 2C:14-2c(1), which was incorrectly recorded in the judgment of conviction and order for commitment as a violation of N.J.S.A. 2C:14-2a(1). N.J.S.A. 2C:14-2c(1) prohibits sexual penetration if "[t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury." In exchange for defendant's guilty plea to Counts One and Three, the State moved to dismiss the remaining counts of the indictment.
The trial court granted the State's motion after first determining that the guilty pleas to Counts One and Three were entered voluntarily and that they rested upon an adequate factual basis. Subsequently, the court sentenced defendant to a term of two-to-five years imprisonment on Count One and to a ten-year consecutive term of imprisonment on Count Three.
From the sentencing hearing and from the hearing on defendant's subsequent unsuccessful motion to withdraw his guilty plea, it is clear that the trial court confused N.J.S.A. 2C:14-2c(1), which requires proof of force or coercion, with N.J.S.A. 2C:14-2a(2), which does not require such proof when the victim is between the ages of thirteen and sixteen years. N.J.S.A. 2C:14-2a(2), however, was inapplicable because as of September 1, 1979, the defendant's daughter was nineteen years old. Because of the unfortunate misunderstanding, the trial court did not determine the existence of force or coercion, the necessary predicate to support the conviction on Count Three.
On defendant's appeal, the Appellate Division vacated the conviction on Count Three, writing in an unpublished opinion:
After a careful study of the record, we are unable to find any admission by defendant that the acts charged in Count Three occurred by means of physical force or coercion. On the contrary, defendant repeatedly asserted at the plea and sentencing hearings that 'it wasn't no assault,' to which the court inaccurately
responded with the acquiescence of defense counsel, 'It's sexual assault because of the age of the child.'
In light of the fact that the victim was over eighteen years old and the defendant did not admit to use of physical force or coercion, the trial court failed to establish a factual basis for the plea. The record clearly reveals that defendant did not have an understanding of the nature of that charge and did not give a proper factual basis. R. 3:9-2, State v. Rhein, 117 N.J. Super. 112 (App.Div.1971). Under these circumstances, acceptance of defendant's guilty plea to Count Three constituted manifest injustice, and defendant's post-sentencing motion to withdraw his guilty plea on that count was improperly denied. R. 3:21-1. See State v. Leckis, 79 N.J. Super. 479 (App.Div.1963). The conviction on Count Three is vacated.
The Appellate Division affirmed the conviction on Count One and also affirmed the dismissal of all remaining counts, except Count Three. As to that count, the Appellate Division vacated the conviction and ...